^. UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY / ■ >s. of THE /^ ,^/::^ MECHANICS' a^^^CT, BEING THE REVISED STATUTE OF ONTARIO (1887), WITH ANNOTATIONS, AND ADDITIONAL FORMS OF PROCEEDINGS THEREUNDER, BY GEORGE SMITH HOLME STED, (Of Osgoode Hall, Barrister-at-Law, and Registrar of the Chancery Division of the High Court of Justice for Ontario.) TORONTO. 1888. T in395 Entered according to Act of the Parliament of Canada, in the year one thousand eight hundred and eighty-eight, by George Smith Holmested, at the Department of Agriculture. CH. '. TORONTO : PRINTED BY C. BLACKETT ROBINSON, JORDAN STREKT. TABLE OF CASES CITED. PAGE. Allen V. Carman, 1; E. D. Smith (N. Y.) 692 14 Angus V. McLachlan, 48 L. T. N. S. 863, 23 Chy. D. 330 104 Appleby v. Myers, L. R. 2 0. P. 651 ;« Amidon v. Benjamin, 126 Mass. 276 8 Armour v. Corruthers, 4 IT. C. L. J. 210 31 Arnbery v. Thornton, 6 P. 11. 190 92 Arnoldi v. Gouin, 22 Gr. 314 14 Austin V. Wohler, 5 111. App. 300 22 B Bank of Montreal v. Haffner, 3 O. R. 183 31 Bank of Montreal v. Haffner, 29 Gr. 319 'i, 23, 31, 72, 73, 74, 92 Bank of Montreal v. Haffner, 10 App. R. 592 9, 23, 32, 72, 73, 74, 92 Bank of Montreal v. Haffner, Cass. Dig. 289 9, 23, 32, 72, 73, 74, 92 Bank of Montreal v. Worswick, Cass. Dig. 289 9, 23, 32, 72, 73, 74, 92 Bateman v. Boynton, L. R. 1 Chy. 359 52 Benneson v. Thayer, 23 111. 374 69, 76 Bennett v. Shackford, 9.3 Mass. 444 18, 19 Board of Education V. Neidenberger, 78 111. 58 20 Boult V. Wellington Hotel Co. (not reported) 58 Bouton V. McDonough County, 84 111. 3S4 20 Breeze v. Midland Ry. Co., 26 Gr. 225 20 Briggs V. Lee, 27 Gr. 464 14, 22, 23, 34, 37, 38, 39, 40, 43, 46, 48 Brooks V. Lester, 36 Md. 65 11 Broughton v. Smallpiece, 25 Gr. 290 30, 31 Broughton v. -Smallpiece, 7 P. R. 270 31 Pruce V. Everson, 1 Cab. & Ellis, 18 105 iv. THE mechanics' LIEN ACT. PAGE. Bunting v. Bell, 23 Gr. 584 4, 19, 72, 75, 90, 91, 93 Burnham v. Waddell, 28 C. P. 263 ; 3 App. R. 288 105 Burritt v. Kenihan, 25 Gr. 183 56, 71, 72, 77, 92 C Canisius v. Merrill, 65 111. 67 18 Chadwick v. Hunter, 1 Man. R. 39 69 Charles V. Jones, 56 L. T. N. S. 848; 35 Chy. D. 544 106 Childs V. Anderson, 128 Mass. 108 27 Clayton v. MeConnell, 14 0. R. 608 15 Clement v. Newton, 78 111. 427 69, 76 Coatsworth v. The City of Toronto, 7 C. P. 490 ; 8 C. P. 364 17 Coddington v. Dry Dock Co., 31 N. J. L. 477 21 Collins V. Martin, 41 U. C. Q. B. 602 6 Copley V. O'Neil, 57 Barb. 299 5 Cornell v. Barnee, 33 Sup. C. N. Y. Hun. 134 4 Cornish, iie, 6 O. R. 2-59 40 Cowan V. Toole, D. B. 37, fo. 5 136 Crawshay v. Homfray, 4 B. & Aid. 50 104 Craig, i2e, 3 C. L. T. 501 9, 30, 73 Credit Valley Ry. Co. v. Great Western Ry. Co., 4 App. R. 532 52 Croskey v. Corey, 48 111, 442 69, 76 Currier v. Friedrick, 22 Gr. 243 27, 58, 78 D Dempsey V. Carson, 11 C. P. 462 104 Dermott V.Jones, 2 Wall, 1 16 Dick V. Stevenson, 70 L. T. 424 18 Dixon V. Lafarge, 1 ; E. D. Smith, 722 99 Dobschuetz v. Holliday, 82 111. 371 26 Donaldson v. Holmes, 23 111. 85 8, 26 Douglas V. Chamberlain, 25 Gr. 288 9, 31, 65 Downer v. Mix, D. B. 31, fo. 392 136 Drew V. Mason, 81 111. 498 19 Dumble V. Larush, 25 Gr. 552 ; 27 C r. 187 73 TABLE OF CASES CITED. V. E PAGE. Ekins V. Bnice, ;50 U. C. Q. B. 48 17 EUett V. Tyler, 41 111. 449 22 Ellis V. Haiulen, 3 Taunt. r,2 15 Esslinger V. Huebner, 22 Wis. G02 7,19 Ettridge v. Bassett, ISiJ Mass. 314 8, 26 Eyster V. Parrott, 83 111. 517 16 F Ferguson v. Burk, 4 ; E. D. Smith (N. Y.), 760 14 Ferguson v. Gait, 23 C. P. (J6 17 Fisher v. Smith, 39 L. T. N. S. 430 ; 4 H. L. 1 104 Flagstaff Silver Mining Co. of Utah v. CuUins, 104 U. S. 17C 3 Forhan v.' Lalonde, 27 Gr. 600 13, 39 Franklin Fire Insurance Co. v. Coates, 14 Md. 285 22 Franklin V. Hosier, 4 B. and Aid. 341 102 Eraser V. Locie, 10 Gr. 207 31 Freeman v. Carson, 27 Minn. 516 21 G Gale V. Blaikie, 126 Mass. 274 8 Gardner v. Watson, 18 111. App. 336 9 Gaskill V. Trainer, 3 Cal. 334 25 Gaule V. Bilyeau, 25 Penn. St. 521 25 Gearing V. Nordheimer, 40 U. C. Q. B. 21 15 Geary v. Hennessy, 9 111. App. 17 7 Gifford & Bury, In iie, 20 Q. B. D. 368 53 Goddard v. Coulson, 10 App. R. 1 39, 40, 41 Gore V, Gather, 23 111. 634 6 Graham v. Williams, 8 O. R. 478 7, 28 Graham v. Williams, 9 O. R. 458 4, 7, 26, 28, 32, 65 Grant v. Dunn, 3 O. R. 376 56, 59, 60 Grant v. Eastwod, 22 Gr. 563 52 Grainger v. Grainger, 1 Chy. Ch. R. 241 91, 93 Great Western Planing Mill Co. v. Bormans, 19 Miss. App. 671 21 VI. THE MECHANICS LIEN ACT. PAGE. Greenhill v. Church, 3 Rep. Ch. 49 , 52 Greenwood v. Brownhill, 44 L. T. N. S. 47 52 Guy V. Carriere,- 5 Gal. 511 26 H Hall, Ex parte, 10 Chy. D. 615 79 Hall V. Pilz, 11 P. R. 449 82, 83, 136 Hamilton V. Bankin, 3 D. G. & Sm. 782 52 Harrington v. Saunders, 23 C. L. J. 48 ; 7 C. L. T., Occ. N. 88 39, 41 Hartley v. Hitchcock, 1 Starkie, 408 103 Hartop V. Hoare, 3 Atk. 43 104 Havighorst v. Lindberg, 67 111. 463 16 Hayes v. Fessenden, 106 Mass. 228 26 Hazard Powder Co. v. Byrnes, 12 Ab. Pr. 469; 21 How. P. (N. Y.) 189. ..... 99 Henry v. Bowes, 3 C. L. T. 606 85, 93 Herring v. Napanee and Tam worth Ry. Co., 5 0. R. 349 52 Hickman v. Lawson, 8 Gr. 386 52 Higgins V. Ferguson, 14 111. 269 8, 26 Hill V. Lacrosse and Mil. R. R. Co., 11 Wis. 214 20 Hill V. Newman, 38 Penn. 151 18 Hilton V. Merrill, 106 Mass. 528. S Holzhour V. Meer, 59 Mo. 434 18 Hooker v. McGlone, 42 Conn. 95 25 Hooper v. Sells, 58 Ga. 127 79 Horton, iJe, 45 U. C. Q. B. 141 52 Hovenden v. Ellison, 24 Gr. 448 72, 133 Hubbard v. Brown, 90 Mass. 590 . . 18 Hunter V. Blanchard, 18 111. 318. 19 Hunter v. Wilcockson, 9 P. R. 305 114 Hydraulic Press Brick Co. v. Bormans, 19 Miss. App. 664 21 Hynes V. Smith, 8 P. R. 73 62 Hynes v. Smith, 27 Gr. 150 9, 10, 58, 62, 63. 67, 68, 73 I laege v. Bossieux, 15 Gratt. 83 11 Irwin V. Beynon, 4 Man. K. 10 70, 78 TABLE OF CASES CITED. Vll. J PAGE. Jackson v. Cummins, 5 M. & W. 342 102 Jekyll V. Wade, 8 Gr. 363 -^2 Jones V. The Queen, 7 S. C. R. 570 17 Jones V. Shawhan, 4 Watts & Serg. 262 59 K Kelly V. Border City Mills, 126 Mass. 148 18 Kelly V. McKenzie, 1 Man. R. 169 70,78 Kennedy v. Burness, 15 U. C. Q. B. 491 52 Kerr v. Bowie, 3 U. C. L. J. 110 66 Keystone v. Gallagher, 5 Col. 23 99 King V. Alford, 9 O. R. 643 20 King V. England, 4 B. & S. 782 105 Kinzey V.Thomas, 28 111. 502 69,76 Knowles v. Smith (unreported) 83 L Lakin v. Nuttall, 3 S. C. R. 685 17 Lamb v. Campbell, 19 111. App. 272 9 Langv. Gibson, 21 C. L. J. 74 57 Latch V. Bright, 16 Gr. 653 65 Lawrie v. Rathbun, 38 U. C. Q. B. 255 61, 75 Lewis V. Hoare, 44 L. T. N. S. 66 17 Lindop V. Martin, 3 C. L. T. 312 66, 69, 70 Linn v. O'Hara, 2 E. D. Smith, N. Y. 560 14 Little V. Vredenburgh, 16 111. App. 189 7 Lucas V. Goodwin, 3 Bing., N. C. 737 16 M Makins v. Robinson, 6 O. R. 1 8, 58, 59, 69, 70, 78, 107 Malloch V. Grand Trunk lly., 6 Gr. 348 53 Manchester v. Searle, 121 Mass. 418 8 Martsolf V. Barnwell, 15 Kan. 612 11 Milburn v. Milburn, 4 U. C. Q. B. 179 103 Viii. THE MECHANICS LIEN ACT. PAGE. Montgomery v. Brown, 2 U. C. L. J., N. S. 72 66 Moorehouse & Leak, iZe, 13 O. 11. 290 70, 76, 96, 08 Moroney's Appeal, 24 Penn. 372 11 Munro v. Butt, 8 E. & B. 738 15 Mc. McCarthy v. Carter, 49 111. .53 6 McCrea v. Easton, 19 C. L. J. 331 84 McCully V. Rose, 22 C. L. J. 63 57 McDonald V. Wright, 14 Gr. 284 32,73 McGraw v. Bayard, 96 111. 146 9 McGraw v. Godfrey, 16 Abb. Pr. N. S. (N. Y.) 3.58 25 McGuinness V. Boyle, 123 Mass. 570 27 McLaughlin v. Green, 48 Miss. 175 21, 25 McNeil V. Keleher, 15 C. P. 470 103 McPherson v. Gedge, 4 O. R. 246 72, 75, 91 McVean v. Tiffin, 13 App. R. 1 , 9, 10, 58, 63, 64, 67, 68, 73 N Neill V. Carroll, 28 Gr. 34, 339 .56,71,78 Newcomb v. Andrews, 41 Mich. 518 7 Nott V. Nott, 5 0. R. 283 52 O O'Brien V. The Queen, 14 S. C. R. 529 17 Oldershaw v. Garner, 38 U. C. Q. B. 37 15 P Pattinson v. Luckley, L. R. 10 Ex. 330 15 Perkins v. Davis, 120 Mass. 408 26 Petrie V. Hunter, 2 0. R. 233 ; 10 App. R. 127 17,21 Pratt V. Duncan, 32 N. W. R. 709 18 Presbyterian Church v. Stettler, 26 Penn. 246 21 Proctor V. Tows, 115 111. 138 4 TABLE OF CASES CITED. ix. R PAGE. Rand V. Leeds, 2 Phila. ir.O 1<> Raeder v. Bensberg, 6 Miss. App. 445 14 Rathbun v. Hayford, 87 Mass. 400 27 Rathburn v. Burgess, 17 C. L. J. Ill 115, 120 Reinhart v. Shutt, 15 O. R 9, 10, 57, 58, 64, 68, 73 Rhodes v. Airedale Drainage Commissioners, L. R. 1 C. P. D. 402 52 Richards v. Chamberlain, 25 Gr. 402 11, 30, 31, 65 Robb V. Woodstock School Board (not reported) 20, 39 Roberts v. McDonald, 15 O. R. 80 118 Robinson v. Williams, 22 N. Y. 380 11 Rollin V. Cross, 45 N. Y. 766 25 Rose V. Peterkin, 13 S. C. R. 677 10. 57, 04 Ruggles V. Blank, 15 111. App. 436 26 Russell V. Russell, 28 Gr. 419 62 S Scott V. Burgess, 19 U. C. Q. B. 28 20 Scott V. Dickson, 1 P. R. 366 66 Schultz V. Hay, 62 111. 157 37,40 Shaeffer v. Weed, S 111. 513 5 Sharpe v. San Paulo Ry. Co., L. R. 8 Chy. 597 17, 43 Shaw V. Cunningham, 12 Gr. 101 32, 73 Shaw V. Thompson, 105 Mass. 345 27 Sherbro', The, 48 L. T. N. S. 767 96 Shultz V. Reddick, 43 U. C. R. 155 105 Smith, In iJc, 20 Q. B. D. 321 49 Smith V. Doyle, 4 App. R. 477 91 Smith V. Gordon, .30 C. P. 553 17, 43 Smith V. McDonald, 25 Gr. 600 82 Smith V. Norris, 120 Mass, 58 8 Steigleman v. McBride, 17 111. 300 21 Stephens v. Holmes, 64 111. 336 18 Stevens v. Lincoln, 114 Mass. 476 27 Stewart v. Gesner, 29 Gr. 329 26, 79 X. THE MECHANICS LIEN ACT. T PAGE. Taylor V. Gilsdorff, 74 111. 354 7 Tharsis Sulphur & C. Co. v. McEIroy, li App. Cas. in40 17 Thaxter V. Williams, 31Mass. 49 26 Thorn v. Mayor of London, L. R. 9 Ex. 163 ; 10 Ex. 112 16 Thomas v. Industrial University, 71 111. 310 20 Thomas V. Urbana School Dis., 71111. 283 20 Thomas v. Yates, 28 How Pr. (N. Y.) 142 16 Tizzard v. Hughes, 3 Phila. 261 18 Tompkins v. Dudley, 25 N. Y. 272 21 Trask v. Searle, 121 Mass. 229 3, 18, 27 Turner v. Saunders, 5 111. 527 26 Turner v. Wentworth, 119 Mass. 459 18 U Underhill v. Corwin, 15 111. 556 22, 28 V Van Court v. Bushnell, 21 111. 624 69. 77 W Wagner v. Jefferson, 37 U. C. Q. B. 551 7 Wanty v. Eobins, 15 O. E 10, 57, 63, 68 Weatherdon v. Robinson (not reported) 96 Webber v. Cogswell, 2 S. C. R. 15 103 Webster V.Real Est. Imp. Co., 140 Mass. .526 18 Wendt V. Martin, 89 111. 139 7 Whitley v. McMahon, 32 C. P. 453 .52 Williams V. Grey, 23 C. P. 561 105 Willoughby, Ex parte, 44 L. T. N. S. Ill ; 16 Chy. D. 604 102, 104 Wilson V. Sleeper, 131 Mass. 177 18 Wilson V. York, 46 U. C. Q. B. 289 52 Woodruff Iron Works V. Adams, 37 Conn. 233 7 Worrell v. Lee (not reported) 38, 40 Wright V. Hood, 5 N.W.R. 488 7 ABBREVIATIONS USED IN THIS WORK. Abb. Pr Abbott's Practice Reports, New York. Abb. Pr. N. S. N. Y. . Abbott's Practice Reports, New York, New Series. App. Cas English Law Reports, Appeal Cases. App. R Ontario Appeal Reports. Atk Atkyns' Reports. B. & Aid Barnewall & Alderson's Reports. B. & S Best & Smith's Reports. Barb Barbour's Reports, N. Y. Bing. N. C Bingham's New Cases. C. L. J Canada Law Journal. C. L. T Canada Law Times. C P Upper Canada, or Ontario, Common Pleas Reports. CR Consolidated Rules of Supreme Court of Judicature for Ontario. Cab. & Ellis Cababe & Ellis' Reports. Cal California Reports. Cameron's Opinions . . Opinions of the late John Hilyard Cameron, Q.C. Cass. Dig Cassels' Digest of the Reports of the Supreme Court of Canada. Chy. Ch. R Chancery Chambers Reports (Ontario). Chy. D English Law Reports, Chancery Division. Col Colorado Reports. Conn Connecticut Reports. D. B Decree Book, Court of Chancery, Ontario. D. G. & Sm DeGex & Smale's Reports. E. & B Ellis & Blackburn's Reports. E. D. Smith (N. Y.) . . E. D. Smith's New York Reports. Ex Exchequer Reports (English). Xli. THE mechanics' LIEN ACT. Gr . Grant's Chancery Reports, Ontario. Gratt . . • Grattan's Reports. How. Pr . Howard's Practice Reports (N. Y.). Ill Illinois Reports. 111. App Illinois Appeal Reports. J- B .ludgment Book, Chancery Division, Ontario. Kan Kansas Reports. L. R. Chy English Law Reports, Chancery Appeals. L. R. C. P. D En.-lish Law Reports, Common Pleas Division. L. R. Ex Law Reports, Exchequer. L. R. Chy Law Reijorts, Chancery. L. T Law Times, Journal ( I'^nglish). L. T. N. S English Law Times Reports, New Series. M. & W Meeson & Welsby s Reports. Man. R Manitoba Reports. Mass Massachusetts Reports. Md Maryland Reports. Mich Michigan Reports. Minn Minnesota Reports. Miss Mississippi Reports. Miss. App Missouri Appeal Reports. Mo Missouri Reports. N. J. L New Jersey Law Reports. N. W. R North- Western Reporter (N. S.). N. Y New York Reports. O. R Ontario Reports. P. R. ...... . Practice Reports, Ontario. Penn Pennsylvania Reports. Penn. St Pennsylvania State Reports. Phila Philadelphia Reports. Phillips Phillips on Mechanics' Liens. Q. B Ontario Queen's Bench Reports. Q. B. D English Law Reports, Queen's Bench Division. //■■ -<^ TABLK OK ABREVIA'W^J^. ^^^ •" xiii- Rep. Ch English Reports in CUiincer3^<\ . R. S. O Revised Statutes of oVta*^^^>i7.. ^ x r/' R. S. O. 1877 Revised Statutes of On(^Kgl877r ->>^^ S. C Same case. 3. C. R Reports of Supreme C\)urt of Canada. Sup. C. N. Y. Hun . . Supreme Court of New York Reports, Hun. Taunt Taunton's Reports. U. C. L. J Upper Canada Law Journal, (Jld Series. IT. C. Q. B Upper Canada Queen's Bench Reports. U. S United States Reports. Wall Wallace's Reports, Supreme Court, United States. Watts & Serg Watts & Sergeant's Reports, Supreme Court, Pennsyl- vania. Wis Wisconsin Reports. THE MECHANICS' LIEN ACT, BEING THE EEVISED STATUTE OF ONTARIO, 1887, CHAPTER 126. An Act respecting Liens of Mechanics and others (a). Shokt title, s. 1. Interpretation, s. 2. Who entitled to lien, ss. 3, 4, 6. Property upon which lien to attach, ss. 5, 6 (2). Owner may retain 10 per cent, of price, s. 7. Sub-contractor's claim, s. 8. Payment of 90 per cent, of contract price authorized, s. 9. Extent of owner's liability, s. 10. Claims against lien holders : May be paid by owner of premises, s. 11. Arbitration, respecting, s. 12. Failure to pay amount found due, s. 13. Arbitration respecting sub-contractor's claim, s. 14. Property not to be removed, s. 15. Registration of claim, ss. IC, 19. Time for registering claims, ss. 20, 21. Expiry of lien, ss. 22, 24. Death of lien holder, s. 25. Discharge of liens, ss. 26, 27. Enforcing lien by action, ss. 28, 30. Exemption of materials from execution, s. 31. Sale of chattels by persons entitled to lien, s. 32. (a) This Act came into force on 31st Deceuiber, 1887. See Ontario Gazette, 1888, p. 4 ; R. S. 0. p. Ivii. A THE MECHANICS LIEN ACT. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — Section 1. 1. This Act may be cited as "The Mechanics'' Sho^tie. Lien Act:' R. S. O. 1877, c. 120, s. 1. The lien of mechanics on lands or buildings, for labour or materials expended thereon, is a purely statutory right ; no such lien existed at Common Law. Previous legis- The first Mechanics' Lien Act passed in this Province was lation. 3g yict. c. 27 (1873). It restricted the right of lien on the land, to those who had contracted directly with the owner of the land ; but it gave to sub-contractors the right of serving notice of their claims upon the owner, and upon such notice being served, authorized the owner to pay their claims, out of any money due by him to the contractor primarily liable therefor. This Act was subsequently amended in 1874, by 38 Vict. c. 20, which gave sub-contractors also the right of lien on the land. These Acts were subse(iuently consolidated by the R. S. O. (1877), c. 320. After this consolidation the Consolidated Act was further amended by 45 Vict. c. 15, which gave certain extraordinary rights of lien to wage earners, in respect of thirty days' wages : and additional amendments were made by 47 Vict. c. 18, and 50 Vict. c. 20. The principal changes effected by these latter Acts were the avoiding of all agreements to prevent the attaching of me- chanics' liens, except as between the actual parties to such agreements ; and providing that liens for thirty days' wages or less should have the same priority " before as after " (sic) the registration of the lien— the intention of the legislature no doubt was to give such liens the same priority " after a» they had before" registration, and this error in the wording THE mechanics' LIEN ACT. 8 of the original statute has been corrected in this revision Sections 1, 2. (see post, section 20, s.s. 3). The other amendments related to the procedure for enforcing, and discharging liens. The present Act is a consolidation of all these statutes. It has been held that when a lien attaches, the statute, Construction being remedial, is to be liberally construed; but on the ques- "^ ^^^' tion whether the lien attaches a ditlerent rule .should obtain, because, liens being in derogation of the Common Law, the Court should not extend the statute beyond the cases speci- ally provided for : Trask v. Searle, 121, Mass. 229, and see Flagstaff Silver Mining Co. of Utah v. Cullins, 104 U.S. 176. 2. Where the following words occur in this Act, Interpreta- or in the schedules thereto, they shall be construed in the manner hereinafter mentioned, unless a con- trary intention appears : — 1. "Contractor" (a) shall mean a person con- "Contractor.'* tracting with or employed directly by the owner for the doing of work or placing or furnishing of machinery or materials for any of the purposes mentioned in this Act ; 2. "Sub-contractor" (h) shall mean a person "Sub-contrac- not contracting with or employed directly by the owner for the purposes aforesaid, but contracting with or employed by the "Contractor," or under him by another " Sub-contractor;" 3. "Owner" (c) shall extend to and include a "Owner." person having any estate or interest in the lands upon or in respect of which the work is done, or 4 THE mechanics' LIEN ACT. Section 2. materials or machinery are placed or furnished, at whose request and upon whose credit or on whose behalf or with whose privity or consent (d) or for whose direct benefit any such work is done, or materials or machinery placed or furnished, and all persons claiming under him (e), whose rights are acquired after the work in respect of which the lien is claimed is commenced, or the materials or the machinery furnished have been commenced to be famished. R. S. 0. 1877, c. 120, s. 2. "Contractor," (a) "Contractor." The primary meaning of "contractor" definition of. -^ ^^^y ^^^ ^j^^ contracts. In this Act, however, and in the annotations upon it, the term is restricted to those persons only, who contract directly with the "owner." Every person contracting directly with the "owner" is a "contractor" under the Act. Where, therefore, the "owner" contracts with several different persons to construct different parts of the building, each person so contracted with is a "con- tractor," and each " contractor " would appear to be a lien- holder of the "same class," (see Bxinting v. Bell, 23 Gr. 584). tion of. " Sub-contrac- (b) ''Sub-contractor." By the definition here given of a tor," defini- n gub-contractor " it would seem to include all sub-contract- ors, in however remote a degree they may stand from the original " contractor." For example, if A contracts with the " owner" to build a house, and then B contracts with A to do the painting and papering, B is a " sub-contractor," and as this section in effect declares that any person employed by a "sub-contractor" is himself a "sub-contractor," it follows that if C contract with B to do part of the painting, and D contract with B to do the papering, and E contract with C to furnish the paint and F contract with D to furnish the paper. THE MECHANICS LIEN ACT. O B C D, E, and F are all sub-contractors under the Act and Section 2. as such entitled to liens. (c) "Owner." It is important to bear in mind that the "Owner," lien given by this Act to •' contractors " and " sub-contract- ors " is to attach upon the estate and interest, legal and equitable, of the " owner " in the building, erection, or mine, upon, or in respect of which, the work is done, or the materials or machinery placed or furnished, (see section 5). This sec- tion provides, that the word " owner" is to extend to, and include persons having '''any estate or interest in the lands upon or in respect of which the work is done, or materials or machinery are placed or furnished, at whose request and upon whose credit or on whose behalf or with whose privity or consent or for whose direct benefit any such work is done, etc." The word "owner," therefore, includes all persons, however small their interest in the land may be, at whose request and upon whose credit, or on whose behalf, or with whose privity or consent, or for whose direct benefit, any work is done, etc. But persons contracting for work or materials, can only bind their own estates and interests, and cannot bind the estates and Persons con- interests of other persons then interested in the land. Thus, only bind their a landlord's interest is not bound by contracts made with his own interests tenant to which the landlord is no party, even though the latter have knowledge that the work is being done, or material being furnished, on the land, and though in certain contingen- cies he may, and in fact does, become entitled to the benefit thereof : Graham v. Williams, 9 O. R. 458 ; Cor^iell v. Barney, 33 Sup. C. N.Y. , Hun. 134. And a tenant at sufferance is Tenant at suf- not agent for, nor can he bind the owner, by his contracts : g^'^f^^.'^Qf owner Pructur V. Tows, 115 111. 138. Where it is soueht to charge of fee. the landlord's estate with liens for work or materials con- tracted for by his tenant, the consent in writing of the land- lord must be obtained (see section 5, s.s. 2), Graham v. Williams, 9 O. R. 458. Neither is the dower of a wife bound Dowress not by a contract made with her husband : Shaeffer v. Weed, 8 ^°"°^ ^^ °*'"- 6 THE MECHANICS LIEN ACT. Section 2. 111. 513. ; Gore v. Cather, 23 111. 634 ; PhilHps, s. 195. But tract of her where the husband acquires the land after the lien has husband. attached, the lien will have priority over the dower (lb.). Contract In order that a lien may attach under this Act it is neces- under which g^j.y ^;j^a,t the original contract, by virtue of which it is hen arises , . , . , , . , . ,. ,. ,/ ,, must be claimed to arise, be one that is binding on the owner binding on whose interest is sought to be charged. It is not necessary owner. cj v_7 */ that the contract of the lien-holder himself should be made directly with the "owner," otherwise all sub-contractors would be excluded from the benefit of a lien, but generally speakina: it is necessary that the person legally liable to the contractor under whom a sub-contractor directly or indirectly claims, shall have some estate or interest in the land on which the lien is claimed. Contract with Work done or materials furnished at the request of a person person having j^^ving no interest in the land, will confer no lien upon the no interest in " ' ^ . land. land. Thus when, in fulfihnent of a policy, a house is rebuilt by an insurance company upon the land of the insured, no lien for the work or materials will under such circumstances attach upon the land : Phillips, s. 82. Contract with Where the contract, by virtue of which the lien is claimed, minor, or ^g ^lade with an " owner" who is a minor, or lunatic, no lien lunatic. ' •, , i , 1 could be enforced under the Act by the contractor or any sub-contractor, because minors and lunatics are incapable of binding either themselves, or their lands, by contracts for the erection of buildings, or improvements on their property. And it would seem that a contract made with a guardian of a minor, without the sanction of some competent court, for the 1 erection of a building on the minor's land, would not give any right to a lien under this Act : McCarthy v. Carter, 49 111. 53 ; Copley v. O'Niel, 57 Barb. 299 ; and see Collins v. Martin, 41 U. C. Q. B. 602 ; Phillips, ss. 108-111. Contract with Where the owner of land is a married woman, as a general husband, to j-ule she must be bound by any contract, express or implied, THE MECHANICS LIEN ACT. 7 under which any buildings or improvements may be erected, Section 2. or made upon her land, otherwise no lien will attach upon do work on her interest in the land for the price. It is not sutiiciont wife's land, that the work has been done, or the materials have been f ur- ® ®^ nished, at her husband's request, unless it can be established that the husband acted as the wife's agent ; the relationship of husband and wife, does not of itself raise any presumption ihat the husband acted as his wife's agent. Where a husband, on his own responsibility, procured a building to be erected on his wife's land, without her consent or concurrence, it was held that she was not liable for the price : Wagner V. Jefferson, 37 U. C. Q. B. 551 ; EssUnger v. Huebner, 22 Wis. 602; Newcumh v. Andrews, 41 Mich. 518; Woodruff Iron Works v. Adams, 39 Id. 233; Wright v. Hood, 5 N. W. R. 488 ; Wendt v. Martin, 89 111. 139 ; Geary v. Hennessij, 9 111. App. 17 ; Little v. Vredenhurgh, 16 111. App. 189. To this general rule, however, liens for wages for thirty Liens for days or less are an exception, and attach upon the lands of a ^^'^ges. married woman upon or in respect of which the labour for ^ which the wages are payable has been performed, where such ' work has been done at the instance of her husband, even though she may not have been a party to the contract, pro- vided they are duly registered as provided by section 20, {see section 6, s.s. 2). A contract made with a trustee having power to build will Contract with bind'thTt^st estate, (see Taylor v. Gilsdorff', 74 111. 354). t'-'^st^e- (d) " With whose privity or consent." Mere knowledg e of Privity or the existence of the contract, or of the performance of the consent of work^or supplying of materials, is not sufficient : see Gra- ham V. Williams, 8 O. R. 478 ; 9 O. R. 458. But an owner Estoppel of standing by, and inducing credit to be given to another, upon owner, the representation that such other person is the owner, ma}- be estopped in equity from afterwards setting up his title adversely to the claim of a lien-holder, whose lien has been 8 THE mechanics' LIEN ACT. Section 2. acquired under such circumstances : Higgins v. Ferguson, 14 111. 269 ; Donaldson v. Holmes, 23 111. 85. Persons claim- (^) " ^nd all persons claiming under him." These words, ing under when taken in connection with section 5, would seem ta far bound by indicate that the intention of the Act was to prevent the liens. claim of a lien-holder from being defeated either by the death of the "owner" with whom the lien-holder, directly or indirectly, contracts, or by his transferring his interest in the property to another after the lien has attached ; and this- view was adopted by the court in Makins v. Robinson, G O. R. 1, and see Hilton v. Merrill. 106 Mass. 528 ; Smith v. Norris, 120 Mass. 58 ; Gale v. Blaikie, 126 Mass. 274 ; Amidon v. Benjamin, lb. 276 ; Ettridge v. Bassett, 136 Mass. 314; but where the "owner" with whom the lien-holder, directly or indirectly contracts, has subsequently to the lien attaching a Instantaneous mere momentary seizin, as where the property is conveyed seizure. ^^ him, and he contemporaneously mortgages it back to his grantor, the lien would not, it seems, attach upon the estate of the mortgagee (see post, section o, note h): but subject to this exception, the intention of the Act seems to have been that all persons claiming under the " owner " with whom the con- tract is directly or indirectly made, whose rights accrue after the work or materials, in respect of which the lien is claimed^ have been commenced to be done, or finished, should take subject to the lien, provided it be duly enforced as provided by the Act (see sections 22, 23, 24). But it has been held in the United States, that in order that a lien may prevail against a subsequent mortgagee without notice, it is necessary that the contract should be precise and definite, and not subject to be affected, modified, or changed at the will of one of the parties : Manchester v. Searle, 121 Mass. 418. Effect of prior But in the present state of the authorities in Ontario registration, j^ would seem that a subsequent grantee or mortgagee of the " owner" may acquire priority over the lien-holder, by prior THE MECHANICS LIEN ACT. registration : see Douglas v. Chamberlain, 25 Gr. 289, 290 ; Hynes v. Smith, 27 Gr. 150 ; McFean v. Tiffin, 13 App. R. 1 ; Re Craig 3 C. L. T. 501 ; Belnhart v. Shntt, 15 O. R. . These cases proceed on the assumption that Tlte Registry Act applies to mechanics' liens, although section 19 of this Act expressly declares that it is not to apply to them, except as by this Act is provided, (see sections 16, 20, 23). It has been argued therefore that these cases do not correctly interpret the Statute, (see 22 C. L. J. 855, 356). Section 2. Assuming the reasons upon which these cases are founded Makins v. to be correct, it has been suggested (see Reinhart v. Shutt, ff^^JtTl: .^^"^ 15 O. R. ) that they in effect overrule the decision of ble with Ferguson, J., in Makins v. Robinson, supra. It may, however, ^.^^"" ^" be well to observe that the facts in the latter case were essentially different from those in Hynes v. Smith, and Mc Vean v. Tiffin. In the latter cases, what was sought to be done, was to add a subsequent mortgagee as a party in the Master's office after the time limited by the Act for bringing a suit to enforce the lien had expired ; and inas- much as the suit is not commenced as against parties added in the Master's office until such parties are actually added ; see Bank of Montreal v. Haffner, 29 Gr 319 ; 10 App. E. 592 ; S.C. snb. nom. Bank of Montreal v. Worswick, Cass. Dig. 289 ; McGraw v. Bayard, 96 111. 146 ; Gardner v. Wat- son, 18 111. App. 386 ; Lamb v. Campbdl, 19 111. App. 272 ; the plaintiffs right as against such subsequent mortgagee had in fact expired under sections 22, 23 ; whereas in Makins v. Robinson the subsequent transferee was an original party defendant, and the action was commenced against him in due time. While, therefore, the decisions arrived at in Hynes v. Smith and McVean v. Tiffin appear to have been quite correct on the facts presented in those cases, it is possible that the reasons assigned for those decisions may hereafter be found to need modification. Certainly they seem somewhat difficult to reconcile with section 2 s.s. 3, 10 THE mechanics' LIEN ACT. Section 2. which declares that the term " owner " is to include all persons claiming under the person with whom the contract is made, ' ' ivhose rights are acquired after the tmrh in respect of which the lieu is claimed is commenced, d;c.," and section 5, which declares that the lien ' ' shall attach upon the estate f j and interest of the owner as defined by this Act," and section 19, which declares " that except as herein otherwise provided I The Registry Act shall not apply to any lien arising under '• this Act." Subsequent Tt has been suggested (lieinhart v. Shutt, supra) that the l^islation, Legislature has given a quasi-legislative sanction to the inter- gards McVean pretation adopted by the courts in Hyaes v. Smith and McVean V. Tiffin. y Tiffin by the amendment introduced by 50 Vict. c. 20, s. 1, in favour of liens for wages (see section 20 s.s. 3, jwst). This provision, as now incorporated in the Revised Statute, expressly provides that liens for thirty days' wages ' ' shall have the same priority for all purposes after as before regis- tration"; but it is open to question whether that provision does any more than declare what was previously, and still is, the law as to all liens. That section seems to imply that previous to its passage a lien's priority existing before regis- tration, might be lost by its subsequent registration. If McVean v. Tiffin be correct the priority of the lien is not lost merely by its registration, but by reason of the previous registration of some conflicting right, and this prior registra- tion of a conflicting right will defeat the lien, as well before, as after its registration, if McVean v. Tiffin be a correct Actual notice interpretation of the Statute. Assuming The Registry Act lien"effect^of **' *PP^y *^ mechanics' liens, as held by the court in McVean V. Tiffin., supra, it would seem that prior registration will not give priority over mechanics' liens of which the person claiming under the prior registered instrument had actual notice, before registration of the instrument under which he claims, (see Rose v. Peterkin, 13 S. C. R. 677 ; Wanty v. Robins, 15 O. R. ). / THE mechanics' LIEN ACT. 11 Where a mortgage is given to secure advances to be applied Sections 2, 3. in the erection of a building upon land, and all the money is Mortgage to advanced before any of the work is done by persons who secure future subsequently register liens, the interest of the mortgagee i3 ^ ^^-^ces. not bound by such liens, (see Cameron's Opinioiis, p. 184) «xcept as provided by section 5, s.s. 3. It has been held, that when a mortgage was given to secure Advances future advances, and was duly registered ; and advances were after lien , , , • , ■■ ,, . attaches, effect made after a right of hen had been acquired under the Act, of. but before registration of the lien, and__without any actual knowledge of the lien by the mortgagee, that the lien-holder was~nor entitled to j^riority over the claim of the mortgagee in respect of such subsequent advances : Richards v. Cham- berlain, 25 Gr. 402 ; and see Brooks v. Lester, 86 Md. 65 ; Robinson v. Williams, 22 N. Y. 380 ; Moroneifs Appeal 24 Penn. 372 ; Martsolf v. Barnwell, 15 Kan. 612 ; laege v. Bossieux, 15 Gratt. 83. 3. No agreement (a) shall be held to dei^rive Person not ,..,,. ,. -, II • t i. deprived of any one otherwise entitled to a hen under this Act, iien byagree- and not a party to the agreement (b), of the benefit party thereto. of the lien, but the lien shall attach, notwithstand- ing such agreement. 47 V. c. 18, s. 1, pai't. [a] " JVo agreement." The object of this section is to pre- Agreement to vent contractors, or sub-contractors, from entering into agree- ^^^f nea, ' ' o o etiect of. ments which shall deprive their sub-contractors of the right of lien. Under this section a contractor might contract with the owner not to register, or claim, any mechanics' lien, but, notwithstanding such an agreement, any person who might enter into a sub-contract with such contractor to perform any part of the contract, would be entitled to claim a lien. Although no agreement can deprive any but the part}' to it of the right to a lien, yet it is possible that agreements might 12 THE mechanics' LIEN ACT. Sections 3, 4. be made putting an end to tbe contract, or forfeiting the price payable thereunder, if any mechanics' lien should be regis- tered by the contractor, or any sub-contractor under him, and , inasmuch as the amount for which a sub-contractor is entitled to a lien cannot exceed what is due by the owner to the con- tractor under whom such sub-contractor directly or indirectly claims (see post, sections 8, 10) , it is possible that the lien of the latter might be defeated notwithstanding this section. Agreement to (b) " Not ajmrty to the agreement." It would seem probable waive lien ^^]^^^ j^jj persons actually representing the estate of a person, persons not who has contracted to waive a right to a mechanics' lien, are parties. bound by such an agreement though not actual parties to it, e.g., the personal representative of a deceased contractor, or sub-contractor, who has made such an agreement, or his assignee would probably be held to be bound by the agree- ment, because such persons only take such right of lien if any, as the deceased person, or assignor, as the case may be, had at the time of his death, or assignment. At the same time it may be argued that but for the agreement they would have been entitled to a lien, and are therefore literally within the terms of this section. But for the purposes of the construction of this section, the personal representatives, ,or assignee, would probably be deemed in law to be pardes to the agreement. \ Mechanics 4. Unless he signs an express agreement (a) to have liens for the Contrary, every mechanic (h), machinist, builder, etc. ° ' miner, labourer, contractor or other person (c) .doing work (d) upon, or furnishing materials to be 11 used (e) in, the construction, alteration or repair of any building or erection, or erecting, furnishing or placing machinery of any kind (/) in, upon or in connection with any building, erection or THE mechanics' LIEN ACT. 13 mine (g), shall by virtue of being so employed (h) Section 4. or furnishing, have a lien for the price of the work, machinery'or materials, upon the building, erection or mine, and the lands occupied thereby or enjoyed therewith (i), limited in amount (/) to the sum justly due to the person entitled to the lien. E. S. 0. 1877, c. 120, s. 3 ; 47 Y. c. 18, s. 1, j^art. (a) " Unless he signs an express agreement." It is obvious, Agreement to from these words, that a parol agreement to waive the right waive right to ... . . ^ ' ™-r- , , hen must be of hen, IS ineiiectual. The agreement must be express, and in wiiting, and not to be gathered by implication, and must be signed by express. the party entitled to the lien. An agreement binds only the party who signs it, and probably his representatives, (see section 3, note (6) ), but not any sub-contractor. Prior to the 47 Vict. c. 18, 3. 1, a "contractor" might, by his agreement, deprive all sub-contractors under him of the right of lien : Forhan v. Laloncle, 27 Gr. 600. Persons entering into contracts as sub-contractors in the Rights of sub- expectation of acquiring a lien under the Act, before engag- contractors to ... ,,.. . hen, how far ing in the work, or furnishing materials, should nevertheless affected by inquire of the " owner" at whose instance the work is being agreements . . between done, or materials furnished, whether there be any agreement "owner " and between him and the "contractor" debarring the latter, or contractor. his sub-contractor, from claiming a lien. For although the right of sub-contractors to liens can only be barred by an express agreement between themselves and the "owner," yet their liens may perhaps be rendered fruitless by the "owner" stipulating with the "contractor," not only that; the latter shall not be entitled to any lien, but also that in I the event of any lien being claimed or registered by any sub- 1 contractor under him, the money payable under the contract I shall be forfeited ; because the lien of a " sub-contractor " is. 14 THE MECHANICS LIEN ACT. Section 4, by section 8, limited to what is due by the "owner" to the " contractor," and if nothing be due, the " sub-contractor " can get no benefit from his lien : Briggs v. Lee, 27 Gr. 464 ; Ferguson v. Burk, 4 E. D. Smith (N. Y.) 760 ; Allen v. Car- man. 1 E. D. Smith (N. Y.) 692 ; Linn v. O'Hara, 2 E. D. Smith (N. Y.) 560. Minor, may acquire right of lien. (6) "Every mechanic." A minor, though unable to bind himself by contract, may nevertheless if he actually do work, or furnish materials, be entitled to a lien therefor : Phillips, s. 38. "Sub-contractors" as well as "contractors" are included. The extension of the right to register liens, to sub-contractors indefinitely, has been considered to be open to grave objec- tions on the score of policy, both as regards the "owner" and the mechanic, (see Phillips, s. 60). < Architects, when entitled to lien. (c) '^ Or other person." An architect is entitled to a lien under this section, for drawing plans and specifications, and superintending the erection of a building : Artioldi v. Gouin, 22 Gr. 814. But a distinction has been made in the United States where an architect merely draws plans and specifica- i\tions, and does not superintend the erection ; in such a case he has been held not to be entitled to a lien : Eaeder v. Bensberg, 6 Miss. A pp. 445 ; Phillips, s. 158. Extent of lien of contractor. Corporation entitled to lien. A contractor is entitled to a lien upon the interest of the " owner" in the land, not only for his own personal labour, but also for the labour of all employed by him, and also for all materials he has furnished, or procured to be furnished, for which he is liable. The fact that a lien is also given to the journeymen, or other labourers employed by the " con- tractor " is not incnnsistent with the latter's right of lien ; the effect of the "sub-contractors" enforcing their liens against the land, is merely to diminish pro tanto the lien of the contractor, (see Phillips, s. 40). A corporation doing work, or furnishing material, would be entitled to a lien THE mechanics' LIEN ACT. 15 (see R. S. 0. 1887, c. 1, s. 8, s.s. 13). An "owner" cannot have Section 4. a lien under this Act against his own^Buitding for work done <^ could set up against a claim by the/r'^ContractGr '-^ for the price, would seem equally available atam^fr>^y clagit^ for a lien by any "sub-contractor" under i'^w^\ O ^ ^ When the procuring of an engineer's or architect's certifi- Production of ■cate is, by the terms of the contract with a "contractor," arcMt«;Vs cer- made a condition precedent to payment, the contractor, as a tificate when general rule, cannot recover the value of his work, either on precgj^ent" the common counts, or under the contract, without first produc- to right to ing the certificate : Sharpe v. S(ui Paulo By. Co., L. R. 8 Chy. enforce lien. 597 ; Tharsis Sulphur d C. Co. v. McElroij, 3 App. Cas. 1040 ; Lakin v. Kuttall, 3 S. C. R. 685 ; Jones v. The Queen, 7 S. C. R. 570 ; O'Brien v. The Queen, 14 S. C. R. 529 ; Coats- worth V City of Toronto, 7 C. P. 490 ; 8 C. P. 3fi4 ; Ekins v. Bruce, 30 U. C. Q. B. 48 ; Ferguson v. Gait, 23 C. P. 66. But, although the production of the certificate may be essential as a condition precedent to the recovery by the contractor, it is not necessarily so, where, the original contractor having failed in his contract, the owner agrees with a third party to go on and complete the work according to the original contract. In such a case, the completion of the work by such third party, so as morally to entitle him to a certificate, is all that need be shown : Petrie v. Hunter, 2 O. R. 233; 10 App. R. 127 ; Letris v. Hoare, 44 L.T. N.S. 66. So also, when a contractor is prevented from obtaining the Non-produc- certiticate by the wrongful act of the "owner," he may ''^'''^ '^ ,^^'''''"' recover on the common counts without the certificate : Smith excused. V. Gordon, 30 C. P. 553. It is immaterial whether all the labour for which a lien is Work need not claimed is actually performed on the land, or in the work- , actually ■ . ,, , done on land, shop, or elsewhere, if it finally go into the work contracted if it finally go B 18 THE MECHANICS LIEN ACT. Section 4. into the work contracted for. For what work lien may- be claimed. Grading. Tearing down, and removing buildings. Hauling. Hoisting. Fences. Drains. r for, (see Wilson v. Sleeper, 131 Mass. 177 ; Dick v. Stevenson. 70 L. T. 424 ; Phillips, s. 40). But the work or services must be immediately connected with the erection, (/&. s. 155). There is no lien, for instance, for planing and sawing timber, without any agreement as to the use to be made thereof, although it is afterwards put into a building : Bennett V. Shackford, 93 Mass. 444. And it has been held, that filling in and grading tbe earth about buildings already erected, is not work for which a lien can be claimed : Pratt v. Duncan^ 32 N. W. R. 709. Nor does a lien attach for labour in tearing down : Holzhour v. Meer, 59 Mo. 434, or removing a building • Trask v. Searle, 121 Mass. 229 ; Stephens v. Holmes, 64 III. 336 ; nor yet for merely hauling lumber and sand for a building, Webster v. Beal Est. Imp. Co., 140 Mass. 526, though if the sand or lumber be hauled by the person furnishing it, a lien could no doubt be claimed for the hauling as well as the price of the material : PMliips, s. 155 ; and in Pennsylvania it has been held that a lien may attach in favour of a teamster for hauling lumber for a building : Hill V. Net^yman, 38 Penn. 151, as also for labour done with derricks in hoisting materials : Tizzard v. Hughes, 3 Phila. 261. It has been doubted whether any lien would attach for work upon, and material for, fences (see Hub- hard V. Brown, 90 Mass. 590 ; Canisius v. Merrill, 65 111. 67). But it would seem that a fence might properly come within the term "erection" in this section. On the other hand a drain-pipe had been held to be part of a house for which a lien may be claimed : Hubbard v. Brown, 90 Mass. 590. Furnaces. When a lien is claimed for putting in a furnace and ranges, the question whether the transaction was the mere purchase and sale of a chattel, or tbe furnishing materials for tbe building, is said to be a mixed question of law and fact : Boiler. Turner v. Wenttvorth, 119 Mass. 459 ; as to a boiler, see Lightning rod. Kelly v. Border City Mills, 126 Mass 148. The erection of a THE mechanics' LIEN ACT. 19 lisjhtninu" rod was held not to come under the head of build- Section 4. ing, altering, repairing or ornamenting a building, (see Dreiv V. Mason, 81 111. 498, and see Bennett v. Shackford, 93 Mass. 444). (e) ^' To be used." The question has frequently arisen in How far the United States whether it is essential to entitle a material- p^^'terial must • 1 • c 1 • 1 , 1- be incorpor- man to a lien, that the material in respect of which the lien ated in buiM- is claimed should have been actually incorporated in the '"»' *o entitle building erected on the land upon which the lien is claimed, to lien. (see Phillips, ss. 148-151). It has been held under this Act that as between lien- / h olders i nter se and for materials furnished to a "contractor" \ (and a fortiori to a sub-contractor), that there is no liens under the Act, until the materials have been affixed to the building or erection. But as between material-men and the " owner " of a building, the former have a lien for materials sold to the latter, to be used on the building, though not used, and others procured elsewhere. All a claimant in the latter case is required to show, is the fact that the materials were furnished for the purpose of being used in constructing, or repairing, the building, (see Biudlng v. Bull, 23 Gr. 588). Questions may arise between different material-men, where both have sold on the credit of the building, the material of one having been used in its erection, and the others not, but such questions would have to be adjusted on the princi- ples of equity (see Esdbiger v. B.nvhner, 22 Wis. 602). There is no lien for unsuitable materials furnished, but not used : Hunter v. Blanchard, 18 111. 318. (/) ' ' Placing machinery of any kind." The word machinery. No lien for as here used, would only cover machines of a fixed or stationary locomotive character, and would not be construed to include locomotives machinery, and portable machines, (see Phillips, 178). (g) " Any building, erection or mine." Notwithstanding Lands not the generality of these words, it has been held that the right ^'^^^® *^ ^*®"- 20 THE MECHANICS LIEN ACT. Section 4. School build- ings. Railway lands. Court house. Buildings belonging to the State. of lien does not exist where the work has been done, or materials supplied upon property not liable to be sold in execution. Thus it has been held that there is no lien for work done on public school buildings : Robb v. Woodstock School Board, per Proudfoot, J. , at Woodstock, April, 1880, because such buildings are not liable to sale in execution : Scott V. Burgess, 19 U. C. Q. B. 28 ; and see Phillips, ss. 179, 179a ; Thomas v. Urbana School Dis. , 71 111. 283 ; Board of Education v. Neidenberger, 78 111. 58. Nor can the lands of a railway company be made subject to such liens : Philli'ps, s. 180 ; Breeze v. Midland Ry. Co. , 26 Gr. 225 ; King v. Alford, 9 O. R. 643. In the latter case, however, Proudfoot, J., dissented ; and see Hill v. Lacrosse & Mil. B. B. Co. , 11 Wis. 214 ; Phillips, s. 182. And it has also been held in the United States that a court house : Boiiton v. McDonough County, 84 111. 384 ; and buildings belonging to the State : Tliomas v. Industrial University, 71 111. 310, are not liable to mechanics' lianz {h) "Shall by virtue of being so employed." The employ- ment here spoken of, must be by some person having either or an Lien-holder must be employed by • i i i i • i i i ■ • i • •. some one hav- an mterest in the land on which the lien is claimea ing an interest interest direct, or indirect, in a contract made with a person having an interest in the land. The employment by a person having neither an interest in the land, nor an interest in a contract made with an " owner " of the land, would give no right of lien under the Act, (see section 2, note (c), ante, p. 6). Prom what A question may arise whether the lien attaches from the U^ he" ^**'® *^^ *^® employment, or from the date of the actual com- mencement of some part of the work, or furnishing some part Commence- of the materials. But it would seem clear that a lien does ment of work, ^ arise merely by contract to do the work, and that on the how far essen- •' •' tial to right of contrary there can be no lien at all until the work is actually ^^®"- commenced, or the materials begun to be furnished. The com- mencement of the lien would therefore appear to be coinci- THE mechanics' LIEN ACT. 21 dent with the commencement of the work, or furnishing of the Section 4. materials, in respect of which it is claimed. The amount of the lien depends, it is true, on the amount due from the ' ' owner " to the "contractor" in respect of the work and materials actually done and furnished ; but though this may vary from Lien relates day to day as the performance of the contract progresses, yet ment^" on the completion of the contract the lien holder would of work. appear to be entitled to treat his lien as one claim dating from the commencement of the performance of the contract, and not as a series of cumulative liens arising from day to day as the contract was proceeded with : see Hydraulic Press Brick Co. V. Bormans, 19 Miss. App. 664 ; Great Western Planing Mill Co. V. Bormans, lb. 071. But see McLaughlin v. Green, x , 48 Miss. 175, where it was held that the lien commences from the date of the contract. Where a contractor is dismissed and the owner makes an Dismissal of arrangement with a sub-contractor of the original " contrac- , contractor, M • , 1 , 11 11 f 1 right of "sub- tor to nnish the work, as to all work done after such arrange- contractor " ment the sub-contractor is entitled to a lien as a "contractor" : employed to TiTiisn work Petrie v. Hunter, 2 O. R. 233 ; 10 App. R. 127. Such a con- tract is not a contract to assume the debt, default or miscar- riage of another, and need not be in writing : lb. (i) " Upon, the building, d-c, and the lands occupied thereby, Kemoval or and enjoyed therewith.'' It is held in the United States that ^«?J^^V'=*^**°°^^ 1. u- • J J 1 • buildmg, effect where a building is destroyed, removed, or m any manner of on lien. severed from the land, the lien ceases to bind either the land or the building : Coddington v. Dry Dock Co. , 31 N. J. L. 477 ; Presbyterian Church v. Stettler, 26 Penn. 246, Phillips, a. 12. So, where, before completion, the building is destroyed by fire, the builder has no lien : see Tompkins v. Dudley, 25 N. Y. 272 ; but see contra, Freeman v. Carson, 27 Minn. 516 ; McLaughlin v. Green, 48 Miss. 175 ; but a wrongful severance of the building from the land, has been held not to defeat the lien on the land : Steigleman v. McBride, 17 111. 300. 22 THE MECHANICS LIEN ACT. Section 4. Transfer of building to another lot, effect of. Sale under execution. Lien is an insurable interest. Amount for which lien may be claimed. It is not probable, however, that under this Act the destruc- tion, or removal, of the building would, in any case, be held to defeat the mechanics' lien on the land ; because by this Act the lien ia not given merely on the building and on the land by inference, as a necessary adjunct, but it is expressly given, both on the land itself, as well as on the building : see section 5, s.s. 1, post, and notes. Where the building is subsequently transferred to another lot, the lien will not attach upon such other lot : Underhill v. Corwiu, 15 111. 556 ; but where the building was sold by a person claiming under the "owner" with notice of the lien, it was held the purchase money was subject to the lien : Ellett V. Tyler, 41 111. 449 ; Austin v. Wohler, 5 111. App. 300. Where the land is sold under execution, or otherwise, the lien is transferred to the proceeds : Phillips, ss. 196-8. The lien of the mechanic is held to be an insurable interest : Franklin Fire Ins. Co. v. Goates, 14 Md. 285. (j) " Limited in a7nou)it." The lien is limited in amount to such sum as is justly due to the person entitled to such lien, that is to say, the lien-holder cannot recover more than that sum : but this clause must be read in connection with sections 8 and 10 : and from those sections it will appear, that although the lien-holder cannot recover more, he may not in all cases be entitled to recover against the land, as much as is justly due to him from his debtor. Where the lien-holder is a " sub-contractor," the amount for which he is entitled to enforce his lien against the land, can (except perhaps in the case of a lien for wages, and except in the case of payments by the "owner" contrary to the provision of sec- tion 9) never exceed the amount due by the " owner " to the " contractor," no matter how much more may be due to the lien-holder by the "contractor" or "sub-contractor," through whom he claims : Briggs v. Lee, 27 Gr. 464 ; and where there THE mechanics' LIEN ACT. 23 are several " sub-contractors " of the same " contractor " or Sections 4, 5. "sub-contractor," each is entitled to a, pro rata share of the amount which the "contractor" or "sub-contractor" through whom they claim, is entitled to receive from the "owner," (see sectio)t 30 s.s. G ; but see section 6, s.s. 2, as to wages). For any excess due to the lien-holders, over and above what they can recover from the land, they are entitled, where suit is brought, to execution against their primary debtors, (section 30, s.s. i,). In addition to his lien on the land, every ' ' sub-contractor " Right of sub- is also entitled to a charge upon ten 2)^r centum of the price t°°h^rgg'"on to be paid by the " owner," which endures until the expira- lo % of price, tion of ten days from the completion of the work, or delivery of the materials, without either registration, or notice to the owner, (section 9, s.s, 2). Any " sub -contractor " may also, by giving notice to the And on resi- ■" owner," obtain a charge for a pro rata share of the money ^"^ 9^ price fills bv •due by the "owner" to any contractor, or "sub-contractor," "owner." entitled to a lien, under whom the person giving the notice claims, (see section 11). It would seem that any suit to enforce a charge, either Suit to enforce under section 6 s.s. 2, or section 11, would have to be brought J'jj^j^^^^l fj,'"^ within the periods limited by sections 22, 23, 24, or the right to such charge will be lost, (see Briygs v. Lee, 27 Gr. 464 ; Bank of Montreal v. Haffner, 29 Gr. 319 ; 10 App. R. 592, ^. C. suh nom Bank of Montreal v. Worswick, Cass. Dig. 289). 5. (1) The lien (a) shall attach upon the estate and Upon what jiroperty the interest (h) of the owner, as defined by this Act, m Hen shall the building, erection or mine upon or in respect -of which the work is done (c) or the materials or machinery placed or furnished, and the land occu- pied thereby or enjoyed therewith (d). 24 THE mechanics' lien act. Section 5. (2) In casGS where the estate or interest charged When the bv the lien is leasehold, the fee simple (e) may also, estate charged i <• i i • is leasehold with the conscnt of the owner thereof, be subject charged in to Said charge, provided such consent is testified certain cases. ^ ,, • • e ^ / j-\ j.i by the signature oi such owner (/) upon the claim at the time of the registering thereof, and duly verified. E. S. 0. 1877, c. 120, s. 6 ; 47 V. c. 18, s. 5. Mortgaged (3) In casB the land upon or in respect of which land. any work as aforesaid is executed, or labour per- formed or upon which materials or machinery are placed (g) is incumbered by a prior mortgage (/?) or other charge, and the selling value of the land is increased by the construction, alteration or repairs of the building, or by the erection or placing of the materials or machinery, the lien under this Act shall be entitled to rank upon the increased value (?■) in priority to the mortgage or other charge. E. S. 0. 1877, c. 120, s. 7 ; 45 V. c. 15, s. 13. Sub-contrac- (a) " The lien." This includes not only the liens of those tors entitled to ^j^Q contract directly with the " owner," but also liens of hen on land. *' , ,. , . sub- contractors between whom and the owner there is no privity of contract. The effect of the Act ajipears to be, to make each sub-contractor an assignee pro tayCto of the original contractor through whom he claims. Estate and ('') " Upon the estate and interest." The lien attaches not interest bound absolutely against the land itself, but only against such estate and interest as the "owner" — that is, the person for whom, THE mechanics' LIEN ACT. 25 directly or indirectly, the work is done or materials furnished, Section 5. or any person claiming under him whose rights are acquired after the lien has attached — has in the land (see section 2, notes c, e; Phillips, s. 72) ; and it has been held in the United States that it is only such estate or interest as the " owner " has at the time the lien attaches, which is bound by the lien : thus, where a person having only a limited estate, such as a Estate or lessee, enters into a contract whereby liens attach on his interest sub- sequently interest, it has been held in the United States that his sub- acquired, how sequent acquisition of the fee will not s'lbject the latter y bound by estate also to the liens so created, (see Fhillips, s. 7-4 : but see Gaule v. Bilyeau, 25 Penn. St. 521). In such a case there is said to be no estoppel to prevent an " owner " from setting up the after acquired estate, in opposition to liens created by him as lessee ; this, of course, is assuming that the landlord's interest had not been expressly bound (see section 5, s. s. 2). It seems probable, however, that under this Act it would be held that the lien binds not only the estate or interest the "owner" may have at the time the lien attaches, but also any other substantial estate or interest which he may acquire in the land so long as the lien remains in force, (see Gaskill v. Trainer, 3 Cal. 334). Where the estate of an equitable owner of the fee was subject to liens, and he subsequently got in the legal estate, both estates were held to be bound : Rollin V. Cross, 45 N. Y. 766 ; McGraw v. Godfrey, 16 Abb. Pr. N. S. (N. Y. ) 358. And an owner who becomes the purchaser Purchase of of his own estate, whic'i is subject to liens, at a sale for taxes, ^^"'^''^'t ta.x has been held to buy for the benefit of all parties interested, "owner," and has not been permitted to set up the tax title in opposi- effect of. tion to the liens : McLaughlin v. Green, 48 Miss. 175 : and he cannot defeat a lien by procuring the legal title to be con- veyed to his wife : Hooker v. McGlone, 42 Conn. 95. Where the seizin of the owner is a mere instantaneous Instantaneous seizin, it has been held that the lien does not attach as seizin, against the estate of his grantee. Thus, where a contract 26 THE mechanics' lien act. Section 5. was made with one not the owner of the land at the time, but who subsequently procured a deed of it, and simultane- ously gave back a mortgage for the purchase money, the work being then in progress, it was held that the lien did not bind the interest of the mortgagee, for work done either before or after the deed : Perkins v. Davis, 120 Mass. 408 ; Ettridge v. Bassett, 136 Mass. 314 ; see also Thaxter v. Wil- liams, 31 Mass. 49 ; Hayes v. Fessenden, 106 Mass. 228 ; Guy V. Carriere, 5 Cal 511 : Phillips, s. 246. Kight of pre- A right of preemption may be bound by a lien : emption. Tarney v. Saunders, 5 111. 527. A lessee whose interest is by^rrende?' subject to a lien, cannot defeat the lien by a voluntary of term, defeat surrender of the term, and, if the lessor do not discharge the '®"' lien, the lessee's interest may be sold under a judgment to enforce the lien, and the lessor has been held compelled to accept another tenant : Dobschuetz v. Holliday, 82 111. 371. Only interest It is only the estate or interest actually affected by the bound by lien jjgj, which can be sold for the satisfaction of the lien : Graham v. Williams, 9 O. R. 458 ; Phillips, s. 186, et seq. ; I uggles v. Blank, 15 111. App. 436. True owner The true owner of tlie estate may be bound by estoppel, when estopped ^hen he stands by, and allows another to assume to deal as the irom Qsnvinsr title in third owner of the land, (see Phillips, s. 75 ; Higgins v. Ferguson, party. 54 m 269 ; Donaldson v. Holmes, 23 111. 85). Devise to pay The lien is an interest in land, and a bequest to pay off a to^Mortmam°* "mechanics' lien on a church is therefore subject to the Statute Act. of Mortmain : Stewart v. Gesner, 29 Gr. 329. Lien only (c) '■'■ Upon or in respect of lohich the work is done." The lien binds land on ^-^^ not extend to any land or building except that upon, which work "" ■ -, r ■ \ ^ ^one. or in respect of which, the work is done or materials furnished. It has been held that there can be no lien on either land or THE mechanics' LIEN ACT. 27 building, for the work and labour, or materials, expended in Sectioli 5. removing a building : Trask v. Searle, 121 Mass, 229. When a mechanic contracts with one person for the erec- Contract to tion of two separate buildings under two distinct contracts, "'^ij'J. •''^P^rate i ° ' buildmgs on each parcel of land is only liable for the building erected 'o rata share of the ten per cent, on which a charge is here given ; except those entitled to liens for wages for 30 days or less. This latter class of lien-holders Preferential are entitled to priority over all other lien-holders in respect of fo^^a"-es '^°^ the ten per cent, (see section 9, s.s. 3). Where a contractor, however, makes default, and never earns the ten per cent., a sub contractor under him has no lien against the " owner " in respect of the ten per cent. : Goddard v. Coulson, 10 App. R. 1 ; Harrington v. Saunders, 23 C, L. J. 48 ; 7 C L. T. ■Occ. N. 88. (h) " To be paid by the owner." The charge hereby created On what fund is upon ten per centiim of the price to be paid by the ^ gj^^ 40 THE MECHANICS LIEN ACT. Section 9. '• owner." There is no charge in terms created upon mone^ due to a " sub-contractor " from a " contractor " or another "sub-contractor;" but the right of any sub-contractor ta participate in the ten per cent, of the price to be paid by the ' ' owner " woald, however, appear to be subject to the charge of any sub-contractor to whom he might be indebted. And when a " contractor " pays his immediate " sub contractors " in advance, and such payments exceed the ninety per centum of the price to be paid by the " owner," any person who has been employed by the sub-contractors who have been so overpaid, would seem to have an equity to stand in the place of the "contractor," and to receive from the "owner" sa much of the ten per cent, as he has lost by reason of the " contractor " making such payment in advance. Owner need Under this section it is not necessary for the owner to not keep back reserve ten per cent, of the price of the work done from day priE^Jf^all to day, so as always to have in hand ten per cent, of the work actually contract price of the work actually done. He is protected if ^^^^' his payments to the contractor do not exceed ninety per cent. of the whole contract price. If the contractor, by his default' never earns the remaining ten per cent, there is no charge upon it in favour of any of his sub-contractors : Briggs v. Lee, 27 Gr. 464 ; Goddard v. Coulson, 10 App. R. 1 ; Schultz V. Hay, 62 111. 157 ; see, however, Be Cornish, 6 O. R. 259. Notice of Hen, (i) " UnleKS notice in writing. " The notice is that referred when to be to in the preceding sub-section 1. If the notice be not given "^owner." within ten days after the work has been done, or materials furnished by the sub-contractor giving it, it must be given before the payment is made by the " owner," otherwise the payment, if made in good faith, will be protected under the preceding sub-section, (so held by Blake, V.C, Worrell t. Lee, 19th May, 1879). Ten percent., {k) ''Ten per cent, of the price to be paid." The words how ascer- "price to be paid " would seem to mean the price to be paid tained. ^ THE mechanics' LIEN ACT. 41 on the whole contract with the "contractor,'' under whom Section 9. the lien-holder claims, assuming the contract to be fully car- prjoritv of ried out. By section 9, s.s. 2, lienholders in general are liens for entitled to a charge upon this ten per cent., but liens for ^^^^* wages (not exceeding thirty days) are, by this section, given a priority over all other liens upon this ten per cent. As regards lien-holders, other than for wages for thirty days or less, their right to the charge on the ten per cent, may be defeated by the failure of the "contractor" to earn it: (section 8, Goddard v. Coulsoib, 10 App. R. 1 ; Harrington v. Saunders, 23 C. L. J. 48; 7 C. L. T. 88) ; but the object of this section appears to be, to make the "owner" liable for the liens of sub-contractors for wages to the extent of ten per cent., whether the contractor under whom they claim shall have earned it or not. Whether the Act carries out the intention is perhaps open to doubt, (see infra note m). {I) " Have priority.'" The general rule is that all lien- holders of the same class are to rank ixiri passu, (see section 30, s.s. 6), but this section makes an exception to the general rule in favour of liens for thirty days' wages. Where there are several liens for wages on the same property, it would seem that all are entitled to rank amongst themselves pari passu to the extent of thirty days' wages, but in priority to all other liens : the intention of the Act being, apparently, to place such lien-holders in the position of " contractors," as regards the ten per cent, of the price, even though as a matter of fact they may be mere sub-contractors. In order to pre- serve the priority given by this pection the lien must be registered as provided by section 20. (to) " Over any claim by the owner against the contractor," etc. Claim by But for this section, it is clear that the right of any sub- oy°^r . 1 against de- contractor to recover against the owner must depend upon faulting " con- whether, as a matter of law, there is anything due by the *'"^ctnr," how , J o J £g^j. subject to "owner" to the "contractor" under whom the sub-contractor charge in 42 THE MECHANICS LIEN ACT. Sections 9, 10. claims. If the contractor make default in performance of his favour of lien- contract, he may be, and often is, unable to recover from the holders. "owner," even for the work he has actually performed, and consequently would not, in such a case, be entitled to recover against the "owner " the ten per centum of the price referred to in this sub-section, {supra note h). It is possible that the Legislature may have intended in such a case to give the lien-holder for thirty days' wages a charge on the ten per cent, of the price, even thongh it may not have been earned by the contractor, but it is doubtful whether the words actually used are sufficient for that pur- pose. The right of an " owner " to resist payment of any part of the price on the ground of non-performance of the contract is not a claim against the "contractor," it is merely a defence to a claim by the " contractor " : but the " owner " may have a claim ' ' against the contractor for or in consequence of the failure of the latter to complete his contract " in the nature of a claim for damages for breach of the contract, which, under the present practice, might no doubt be counter-claimed in any action brought by the " contractor" against the "owner" for the price, either upon the contract, or upon a (jua)dum meruit : or the contract may provide that, on default of the " contractor," the " owner " may proceed and complete the work himself, and deduct the cost of so doing from the con- tract price ; and upon a proper construction of this section it would appear that it is only over such claims of the "owner " that the lien for thirty days' wages is given priority. If that be the proper construction of this clause, then the lien of a sub-contractor for wages may in some cases be liable to be defeated in the same manner as other liens by the default of the " contractor." Extent of owner's lia- bility. 10. Save as herein provided (a), the lien shall not attach so as to make the owner liable to a greater sum than the sum i)ayable by the owner to THE mechanics' LIEN ACT. 43 the contractor (b). R. S. 0. 1877, c. 120, s. 6, «ecs. lo, n. part ; 45 V. c. 15, s. 4. (a) " Save as herein provided." See section 9. (b) "Payable by the owner to the contractor.'" No matter Sub-contrac- what may be the aggregate amount of the claiifls of a " con- tors' liens, can- tractor" and his "sub-contractors," they cannot in any event, what is due by (except perhaps in the case of liens for wages under the pre- ,", "^iisr "to ^^ ceding section) be enforced against the land, for any sum beyond what is due from the " owner " to the " contractor," unless the " owner " has made payments to the contractor in order to defeat or impair the' claim of the lien-holders (see section 9, s.s. 1), or within the prescribed term has made payments exceeding ninety per cent, of the contract price (lb.), and even then only to the additional extent of such payments : Briggs v. Lee, 27 Gr. 464. Where the owner has agreed to pay the contractor for the Production of work done according to the certificate of an architect or engi- engineer's cer- neer that the work has been completed, and not otherwise, condition the certificate must be obtained before the owner can be precedent, compelled to pay, and, in the absence of fraud, the contractor is bound by the certificate and cannot dispute it : Canty v. Clarke, 44 Q. B. 505 ; Sharpe v. San Paulo By., L. R 8 Chy. 597. But when the contractor is wrongfully dismissed by the architect, and thereby prevented from obtaining the archi- tect's certificate, he may recover the balance due to him for the work actually performed : Smith v. Gordon, 30 C. P. 553. 1 1 . All persons furnishing material to or doing Notice to labour for (a) the person having a lien under this claims against Act (h), in respect of the subject of such lien, who notify the owner of the premises sought to be affected thereby, within thirty days after such 44 THE mechanics' lien act. Section 11. material is furnished, or labour performed (c), of an unpaid account or demand against such lien- holder, for such material or labour, shall be enti- tled, subject to the provisions of sections 6 and 9^ to a charge therefor pro rata upon any amount payable by such owner under said lien {d); and if the owner thereupon pays {e) the amount of such charge to the person furnishing material and doing labour as aforesaid, such payment shall be deemed a satisfaction jyro tanto of such lien. E. S. 0. 1877,. c. 120, s. 8. Formerly sub- (a) ''All persons furnishing materials to, or doing labour fm-^ on°y?emTdy '^^'^^ section was part of the original Act of 1873, which was by giving allowed liens to be registered only by persons who contracted no 108. directly with the "owner." The giving notice under this " section " was at first the only remedy a sub-contractor had, but, by the Act of 1874, the right to register liens on the Now have land was extended to all sub-contractors. The latter have, remedy. therefore, now the double right to register, and enforce their liens by suit, against the land, or to give notice under this section. Sub-contrac- {h) " The person having a lien under this Act." Under the noUce^t ^^^^ ^^^ * contractor, or sub-contractor, is entitled to a lien on " owner " the land for work or materials, by virtue of being so employed though ''con- ^j. furnishing, (see section 4), and no active assertion of a not claim a claim, on the part of the person working, or furnishing ®°" material, is essential to his right of lien. The right of lien is given by the statute, and enures to the benefit of the lien- holder, in the absence of any agreement on his part to the contrary, without registration, bringing suit, or giving any notice, until the lapse of thirty days after the work is com- THE mechanics' LIEN ACT. 45 pleted or the material furnished : although registration within Section 11. that time may be necessary to protect the right of the lien- holder as against transfers by the "owner," of the land or any interest therein to third parties not having an actual notice of the lien, (see ante, pp. 8-10). The words "having a lien " do not include a person who has debarred himself by express agreement from having a lien. But though as to such persons, sub-contractors under them may be deprived of any benefit of this section ; they may, nevertheless, notwithstanding such agreement, be themselves entitled to a lien on the land which they may enforce, (see ante, section 4). (c) " Withm thirty days after such material is furnished, or Time within labour performed.'' That is, by the person giving the notice. ^„n\^r^ctOT'to Until this period has elapsed, the lien of the " contractor "'give notice to or "sub-contractor" for whom the work has been done, or o^'"®r. materials furnished, will continue without registration or suit, not only for the work done, and materials furnished, by himself, but also for that which he has procured to be done and furnished by others, and for the payment of which he is liable, (see ante, section 4, note c). After that period, assuming that the whole work and materials required under the lien-holder's contract have been completed, the lien on the land ceases unless it has been registered, or a suit brought to enforce it, and a certificate of the pendency of the suit registered, (see post, sections 22, 23, 24). There may be cases, however, where the lien of a lien-holder will endure for a longer period than that which is limited for giving the notice by a sub-contractor under this section ; as, for instance, where a contractor, or sub-contractor, sublets his contract to various sub-contractors, and these sub- contractors finish their work at difterent times. In such a case the time for each sub-contractor to give notice is governed by the time he completes his own particular work, or finishes furnishing 46 THE MECHANICS LIEN ACT. Section 11. Charge of sub- contractor giving notice to owner is upon money. Payment of claim of sub- contractor by "owner." materials ; but the contractor or sub-contractor by whom he is employed will be entitled to a lien, without registration, until the lapse of thirty days from the completion of the whole of the work for which he has contracted. (d) " Shall be entitled, subject to the provisions of sections 6 and 9, to a charge tlierefor pro rata, upon any amount pay- able by such owiier under said lien." The charge here created is upon the money payable by the "owner" to the person entitled to the lien, and is not upon the land. All sub-con- tractors of a lien-holder entitled to give, and giving notice, under this section, stand on an equal footing, and are entitled to a pro rata share of the amount payable by the " owner " to their common debtor. The Act of 1873, sec. 11, expressly provided that the owner should "thereupon pay the amount of such charge." The omission of these words, however, would not seem to alter the liability of the " owner," as the fact that the person giv- ing notice is entitled to a charge, involves the right to enforce that charge by suit, in default of payment by the " owner. '^ Where nothing is due by the " owner " to the " contractor," none of the "sub-contractors" under him, giving notice under this section, are entitled to anything : Briggs v. Lee, 27 Gr. 464 ; and see section 10. Efifect of pay- ment by ' ' owner " of sub-contrac- tor's claim. (e) " And if the oivner thereupon pays." It would not be safe for an "owner" to pay any claim of which he receives notice under this section, without first informing the prim- ary debtor of the claim, in order to give him an opportunity of disputing its validity if he desires to do so. Payments made by an "owner" to a sub-contractor serving notice under this section, before such sub-contractor's claim has been ascertained by arbitration, are at the risk of the " owner," and are only a valid discharge j^ro tanto of the lien, provided such indebtedness actually existed, (see post, section 13, note e). THE mechanics' LIEN ACT. 47 12. In case of a dispute (a) as to the validity Section 12. or amount of an unpaid account or demand, of disputes as to claims against ■which notice is given to the owner under the pre- lien-holders. ceding section, the same shall be first determined (b) by action in the proper Court in that behalf, or by arbitration, in manner mentioned in section 14 at the option of the person having the unpaid account or demand against the lien-holder ; and pending the proceedings to determine the dispute, so much of the amount of the lien • as is in ques- tion therein may be withheld from the person claiming the lien (c). E. S. 0. 1877, c. 120, s. 9. (a) " In case of a dispute." The dispute here contemplated is one between a " sub-contractor" giving notice under the preceding section and the person by whom he was employed, or between such sub-contractor and the " owner." (b) ' ' The same shall be first determined." The word ' ' shall" Disputed is imperative: (see E. S. 0. 1887, c. 1, s. 8, s.s. 2). For- ^i^J^actoT^' merly the dispute was required to be settled by arbitration, must be set- but now it may be settled either by action, or arbitration, at *^^^ by action, . '' 'or arbitration, the option of the sub-contractor giving the notice. The before pay- settlement of the dispute in one of these ways, must take ™^"* ^^ „ place before the " owner " can properly pay the claim of the sub-contractor, or any part of it affected by the dispute, — and the reason for this is obvious, because what the sub-contrac- tor endeavours to do by giving notice under section 11, is to intercept money which would otherwise be payable by the " owner " to the " contractor," under whom such sub-con- tractor was employed — and it is only reasonable, that dis- putes between the latter should be adjusted, before the claim of the sub-contractor is satisfied. 48 , THE MECHANICS LIEN ACT. Sees. 12, 13. (c) "May be withheld from the person claiming the lien." The words "claiming the lien" obviously refer to the con- tractor or sub-contractor, under whom the sub-contractor giving the notice under section 11 claims. It is enough that such contractor or sub-contractor has a lien, though he may not be actively claiming it. The Revisers of the Statutes altered the wording of section 11 from " claiming " to "hav- ing," and no doubt a similar change should have been made in this section, (see Briggs v. Lee, 27 Gr. 467). Failure to pay 13. In case the person primarily liable (a) to awarded. the person giving such notice as mentioned in section 11 fails to pay the amount awarded (/>) within ten days after the award is made, the owner, contractor or sub-contractor may pay (c) the same out of any moneys due by him to the person primarily liable as aforesaid, on account of the work done or materials or machinery furnished or placed in respect of which the debt arose ; and such payment if made after an award (d) (or if made without any arbitration having been pre- viously had or dispute existing, then, if the debt in fact existed {e), and to the extent thereof) shall operate as a discharge pro tanto of the moneys so due as aforesaid to the person primarily liable. E. S. 0. 1887, c. 120, s. 10. Primary («) " Incase the person primarily liable." The person prim- debtor, who is. arily liable to the sub-contractor who gives a notice under section 11, is the contractor, or sub-contractor, by whom the sub-contractor giving the notice was actually employed to do the work or furnish materials. THE mechanics' LIEN ACT. 49 (6) " Fails to pay the amount awarded." By the preced- Section 13. ing section the amount may be ascertained not only by arbi- tration but also by judgment in an action ; the phraseology of this section is due to the fact that formerly the only means of obtaining an adjustment of a disputed claim of a sub-con- tractor giving a notice to the " owner " under section 11 was by arbitration. The alteration of section 11 by enabling such disputes to be settled also by action, seems to have been over- looked in the revision of this section. (c) "The oimier, contractor, or sub-contractor may J>«y." Payments by It will be seen that section 11 only provides for notice being contractors or •' ^ . ° sub-contrac- given to the ' ' owner, and imposes no duty on him to com- tors. municate such notice to any contractor or sub-contractor under whom the person giving the notice may claim. Pay- ments made by contractors or sub-contractors are, however, validated under this section, as well as payments by the {d) " Such payment if made after an axoard." It will be Eflfect of pay- observed that this section makes no provision for payments ™^°*"y„ . . , , , , "owner" to made after a judgment in an action brought by the sub-con- sub-contractor tractor under section 12. It is therefore doubtful whether a ^^^^^ award, payment made to a sub-contractor giving notice under sec- tion 11, after a judgment in his favour, would protect the per- son paying him, as against the person claimed to be primarily liable, should such judgment be subsequently reversed. See, however. In re iSmith, 20 Q. B. D. 321, where a payment by a garnishee was held to be good, although the judgment, under which the garnishee order was obtained, was subse- quently declared invalid. Payment made after an award, would appear to be clearly a protection to the payer as against the person claimed to be primarily liable, even though the award be subsequently set aside. The remedy of the latter in such a case would appear D 50 THE mechanics' LIEN ACT. Sees. 13, 14. to be against the payee only. If the person claimed to be primarily liable intend to dispute the award, it would seem that he should at once institute an action to restrain the pay- ment of the disputed claim. Effect of pay- (e) " TJien if the debt in fact existed." If the "owner," mentby .< contractor " or "sub-contractor" assume to pay the claim "owner to . . .• n -iu sub-contractor of a sub-contractor who gives notice under section 11 witn- before award, ^yt ^^ award being first made on the claim, such payment, it seems, is no discharge pro tanto of the payer as against the person claimed to be primarily liable to the payee, unless the debt was in fact actually due by the alleged primary debtor. In order to protect a person thus assuming to pay a sub-con- tractor giving notice under section 11 without an award, the consent of, or admission of the debt by, the alleged primary debtor, should be first obtained ; and there appears to be no obligation to make the payment until such consent or admis- sion is obtained. Disputed 14.— (1) In case a claim is made by a sub-con- ^ont'LforMo tractor (a) in respect of a lien (b) to which he is arbitration. '° entitled, and a dispute arises (c) as to the amount due or payable in respect thereof, the same shall be settled by arbitration (d). Appointment (2) One arbitrator shall be appointed by the per- of arbitrators. ^^^ making the claim, one by the person by whom he was employed, and the third arbitrator shall be appointed (e) by the two so chosen. Decision to be (3) The decision of the arbitrators or a majority ^°^" of them shall be final and conclusive (/). R. S. 0. 1877, c. 120, s. 18. THE MECHANICS LIEN ACT. 51 (4) In case either of the parties interested in any Section 14. such dispute refuses or neglects within three days ^^fj^^^^J.^^'^t^^P' after notice in writing requiring him to do so, to tor. appoint an arbitrator, or if the arbitrators appointed {g) fail to agree upon a third, the appointment may be made by a County Judge of the county in which the lands in respect of which the lien is claimed are situate (h). R. S. 0. 1877, c. 120, s. 19. (a) *' Bij a sub-contractor." As to persons coming within the designation of " sub-contractor, ' see section 2, s.s. 2. (b) " In respect of a lien." This refers to alien on the land to which the sub-contractor is entitled, and not to the charge upon the money payable by the "owner" under his contract, under section 11. (c) "J. dispute arises." The dispute here contemplated is one between the " sub-contractor " and the person by whom he is employed. (rf) "Shall be settled by arbitration." The word "shall" is imperative, (see R. S. 0. c. 1, s. 8, s.s. 2). (e) " 27tc third arbitrator shall be appointed." This sub- Arbitrators, section provides that the third arbitrator shall be appointed appointment by the arbitrators chosen by the parties. Sub-section 4 pro- vides for the appointment of an arbitrator by the County Judge, in case of either party refusing or neglecting to appoint an arbitrator under this sub-section ; but no provision is made empowering an arbitrator appointed by the .Tudge for one of the parties, joining with his co-arbitrator in appointing a third arbitrator. In such a case possibly the arbitrator appointed by the Judge might be held to have the power, but it would seem that an application should be made 52 THE MECHANICS LIEN ACT. Section 14, to the Court to appoint the third arbitrator, (see Malloch v^ Grand Trunk By. , 6 Gr. 348). Award, how far final. How award may be impeached. (/) ^' Shall be final and conclusive." Notwithstanding these words the parties are not precluded from disputing the validity of the award where the arbitrators have acted il- legally, (see Kennedy v. Bxirness, 15 U. C. Q. B, , per Burns,. J. , at p. 491). The award must be concurred in by at least two of the arbitrators, an award of the third arbitrator alone would be invalid : Wilson v. York, 46 U. C. Q. B. 289 ; and see, also, Jekyll v. Wade, 8 Gr. 363 ; Hickman v. Laivson, lb. 386 ; and all the arbitrators making the award should execute it together, the execution of it by one at one time, and by another at another time, will render it invalid : Nott V. Nott, 5 0. R. 283. So, also, the award may be invalidated by the arbitrators taking evidence in the absence of one of the parties : IVJiitleij v. McMahon, 32 C. P. 453 ; or b^ their receiving communications ex parte from either party after the evidence is closed : Herring v. Napanee, Tamicorth and Quebec Ey. , 5 O. R. 349. But it is only when the sub- mission is by rule of Court, or can be made a rule of Courts or has the eflfect of a rule of Court, that the High Court has- jurisdiction to set aside an award or motion: Bussell Arb., 5th Ed. 648 ; Be Horton, 45 U. C. Q. B. 141 ; Credit Valley By. Co. V. Great Western Railway Co. , 4 App. R. 532 ; but see Bhodes v. Airedale Drainage Commissioners, L. R. IC. P.D. 402. Here no provision is made for making the submission a rule of any Court. The only remedy of any party dissatis- fied with an award made under this section would be by action: Greenhillw. Church, 3 Rep. Ch. 49; Hamilton v. Ban- kin, 3 D. G. & Sm. 782. As to grounds on which an award can be impeached, see B^^ssell Arb. 5th Ed. 660, 703 ; Story s Eq. Juris. 12th Ed., ss. 1450-8 ; Bateman v. Boynton, L. R. 1 Chy.. 359 ; Grant v. Eastwood, 22 Gr. 563. The mistake of an arbi- trator as to the legal eflfect of his finding, is no ground for setting aside an award : Greenwood v. Brownhill, 44 L. T^ N. S. 47. THE mechanics' LIEN ACT. 53 For form of appointment of arbitrator, see Appendix. Sec a. 14, 15. (a) ''Or if the arbitrators appointed." It is not clear whether Umpire, or these words are confined to the two arbitrators appointed ^.^^.^ appoint- by the parties themselves, or whether they include the case raent of, how of one arbitrator appointed by one of the parties, and the ™ other by a County Judge. If the words are restricted to arbitrators appointed by the parties, then whenever one of the arbitrators is appointed by the Judge for a party making ■default, neither the County Judge nor the arbitrator Appointed by him would appear to have power to appoint a third arbitrator, and in such a case an application to the •court to appoint a third arbitrator under R. S. O. c. 53, -s. 39, might be necessary : see Malloch v. Grand Trunk By., 6 Gr. 348. It may, however, be found that an arbitrator appointed by the Judge for one of the parties has, by neces- -sary implication, all the powers of an arbitrator chosen by the parties themselves, including the right of joining in the appointment of a third arbitrator, (see B. H. 0. c. 53 s.s. -39, 41 ; but see In re Gifford <& Bury, 20 Q. B. D. 868). (h) "In which the lands, etc., are situate." When the lands subject to the lien are partly in one county and partly in another, the Judge of neither county would appear to have jurisdiction. 15. During the continuance of a lien (a) no Property af. ^ . fected by the portion of the property or machinery affected there- lien not to be ... !• 1 1 T removed. by, shall be removed to the prejudice of the lien; .and any attempt at such removal may be restrained by application to the County Court or the Judge thereof, or the High Court respectively, according ^s the claim is under or over the sum of $200 {h). E. S. 0. 1877, c. 120, s. 22. 54 THE MECHANICS LIEN ACT. Section 15. Time within which lien continues. (a) " During the continuance of a lien." A lien if unregis- tered before the expiration of thirty days from the comple- tion of the work or the delivery of the materials, will cease, unless within that time proceedings have been instituted by the lien-holder, or some other lien-holder of the same class, to realize the lien, and a certificate of such proceedings have been registered in the proper registry office, (see section 22) ; and when the action is commenced by another lien-holder of the same class the lien will cease, if the claim is not filed in the action within thirty days after its commencement, (see section 30 s.s. 1). A registered lien ceases at the expiration of ninety days from the completion of the work, or delivery of the materials, or the expiry of the period of credit, unless proceedings are in the meantime commenced and a certificate thereof registered, (see section 23). restrain removal of property, or machinery, in what court to be brought. Actions for (^) ^^ According as the claim is under or over the sum of injunctions, to ^200." It is not clear from the Act whether the word& " the claim " are intended to apply to the individual claim of the lien-holder seeking relief, or whether they refer to the amount claimed to remain due from the "owner" for the satisfaction of the claims of all lien-holders of the same class as that to which the applicant belongs. The latter would seem to be the real sum in question where the suit is brought by a lien-holder not only to restrain the removal of property, but also to enforce payment of his lien (see section 30). But, when the action is brought simply for the purpose of restrain- ing the removal of property, possibly the amount of the indi- vidual claim of the plaintiff would determine the question of jurisdiction. The jurisdiction of the County Court, for the purpose of this section, is limited to $200. The result of the section appears to be, that, in all cases where the claim is- under $200, the application for an injunction to restrain removal of property subject to the lien should be made ia the County Court, and in all other cases in the High Court, (see post, section 28, note a). THE mechanics' LIEN ACT. 55 16. (1) A claim of lien applicable to the case, Section iG. may be registered (a) in the registry office of the Claim may be •' " _ _ _ _ registered. registry division in which the land is situate (h), and shall state (e) — (a) The name and residence of the claimant and of the owner of the property to be charged (d), and of the person for whom and upon whose credit the work is done or materials or machinery furnished, and the time or period within which the same was, or was to be, done or furnished; (b) The work done or materials or machinery furnished ; (c) The sum claimed as due, or to become due ; (d) The description of the land to be charged ; (e) (e) The date of expiry of the period of credit agreed to by the lien-holder for payment for his work, materials or machinery, where credit has been given. (2) The claim may be in one of the forms given Affidavit of in the schedule in this Act, and shall be verified may be made by the affidavit (/) of the claimant, or of his assignee. agent (g) or assignee (h) having full knowledge of the matters required to be verified, and the affidavit of an agent or assignee shall state he has such knowledge. R. S. 0. 1877, c. 120, s. 4 (1, 2); 47 V. c. 18, ss. 2, 3. 56 THE MECHANICS LIEN ACT. Section 16. Registration of lien. Where regis- tration before action is neces sary. By whom liens may be registered. (a) " May be registered." Although the registration of the claim is not necessary to create a lien, it is essential to its continuance after the expiration of thirty days after the work has been completed, or the materials or machinery furnished, (see section 21), unless in the meantime a suit has been com- menced to enforce it by the lien-holder, or some other lien- holder of the same class, and a certificate of lis pendens regis- tered, (see section 22). If the period of credit between the " owner " and the " contractor," or any other lien-holder and his debtor, extend beyond the time limited by sections 20 and 21 for registering a lien, and the lien be not registered, the omission to register will have the effect of defeating the lien : for where the period of credit has not expired, no suit can be brought to enforce the lien : Burritt v. Eenihan, 25 Gr. 183 ; Neiil V. Carroll, 28 Gr. 34 ; 339. And in the case of liens for wages, registration within the period mentioned in section 20 is essential, in order to entitle the lien-holder to the benefit of the provisions of sections 6 and 9. Registration of the lien is also essential where the interest of a lessor is sought to be charged under section 5, s.s. 2, (see ante, p. 28, note/). A claim may be registered not only by the person doing the work, or furnishing the material, but also by his assignee, where the assignment is in writing ; and in such a case the assignee is to make the affidavit verifying the claim, (see sections 25, 16 ; Grant v. Dunn, 3 O. R. 376). Application of The intention of the Act appears to have been that the Registry Act conflicting claims of unregistered lien-holders, and persons claiming under registered instruments, should be determined without regard to The Begidry Act; but the course of judicial decision has run counter to this idea, (see ante, p. 8, et seq.) ; and though this Act says TJie Eegistry Act is not to apply to liens, the courts have virtually said that The Registry Act does apply to liens, and, in the present state of the authori- ties, unless a lien is registered, there is danger that it will lose THE mechanics' LIEN ACT. 57 priority over subsequent purchasers and mortgagees for value Section 16. without notice, (see Wanty v. Bobins, 15 O. R. ; PeUr- ' Tiin V. Rose, 13 S. C. R. 677), whose conveyances or mortgages are first registered. If therefore a lien-holder desire to pre- serve his priority over subsequent grantees or mortgagees, it seems, in the present state of the authorities, advisable in all cases to register his lien promptly. Where priority is claimed by the lien-holder, against a Persons claim- prior registered mortgage or conveyance, it would not seem to ^°? "°"^T be proper to add the person claiming under such mortgage tared deeds, or conveyance as a party in the Master's office ; on the con- how made •' i. J parties, trary, he should be made an original defendant, and the grounds upon which the plaintiff claims priority should be alleged, (see Reinhart v. Shictt, 15 O. R. ). A difference of opinion appears to prevail as to whether an Priority, as execution creditor can, by procuring an attaching order, u^jj^^"^ j "' against the "owner," as a garnishee, obtain priority over attaching mechanics who have previously acquired liens, even though creditor, such liens have not been registered at the time the garnishee order is obtained, and before the time allowed for registering such lien had expired. The better opinion appears to be that he cannot : Lang v. Gibson, 21 C. L. J. 74, (see, how- ever, McCully V. Ross, 22 C. L. J. 63, and see remarks on these two cases 22 C. L. J. p. 75). (6) "Is situate." Where the land affected by the lien is Registration partly in one registration division, and partly in another, the ? i^°'-J^ f"^^ registration should be made in both divisions. Where the in different land is registered under The Land Titles Act, the claim must divisions, be lodged with the Master of Titles, (see R. S. 0. c. 116, s. 55). (c) '^ Shall state.*' The word "shall" is imperative (see R. S. 0. c. 1, s. 8, 3.S. 2). 58 THE MECHANICS LIEN ACT. Section 16. (d) "Owner of the property to be charged." The owner here "O ner " how spoken of is the person against whose interest in the land the to be described lien is to be enforced, not necessarily the owner of the fee, in registered ^^^^ ^^^^^^^ ^_ 2, note c). Where the "owners" were a cor- poration aggregate, the misnomer of the corporation in the registered claim was held to invalidate the registration, as against a subsequent mortgage : Boult v. Wellington Hotel Co., before Blake, V. C, at Guelph, 1st Oct., 1878. It has, however, been held to be sufficient if the name and address of the person who was the " owner " of the property at the date the liability for the lien was incurred is stated, and that a subsequent assignee is bound, even though he acquires title under a conveyance registered before the lien and his name does not appear in the registered lien : Makins v. Robinson, 6 O. R. 1 : see post, section 17, note b : see how- ever McVean v. Tiffin, 13 App. R. 1 ; Hynes v. Smith, 27 Gr. 150 ; Reinhart v. Shutt, 15 O. R. . Description (e) " The description of the land to be charged." Care must of land in ^^ taken to describe the land correctly. Where it forms part ' of a sub-division according to a registered plan, it must be described according to that plan. General descriptions such as "part of lot A," without specifying distinctly the part intended, should be avoided. Affidavit veri- (/) " Verified by the affidavit.''' For form of affidavit, see fyinglien, how ^^g schedule to this Act. Where the affidavit referred to the to be Lrorn.™ claim as "the paper annexed, marked A," and the paper annexed had no such mark on it, but was proved to be the paper prepared for registration, and in that condition annexed to the affidavit, it was held that the omission to mark it "A" did not invalidate the registratiun : Currier v. F-riedrick, 22 Gr. 243. The affidavit may be sworn before any commis- sioner for taking affidavits in the county where the affidavit is sworn: R. S. 0. c. 62, s. 12. A notary public does not appear authorized to take such affidavits, (see R. S. 0. c. 153, B. 4). THE mechanics' LIEN ACT. 59 (g) "Or his agent.''' Formerly the affidavit of an agent Sees. 16, 17, was insufficient : Grant v. Dunn, 3 O. R. 376. (h) " Or assignee." It would seem that it is only when the assignee claims under a written assignment that he is com- petent to claim a lien, (see section 25). 1 7. A claim for wages (a) may include the claims Claims for of any number of mechanics, labourers, or other ^mWiied.^ persons aforesaid, who may choose to unite therein. In such case each claimant shall verify his claim by his affidavit, but need not repeat the facts set out in the claim ; and an affidavit substantially in accordance (h) with Form 4 in the schedule to this Act, shall be sufficient : 45 V. c. 15, ss. 8, 10. («) " A claim for wages.'' It is only in claims for wages Other claims that several lien-holders may ioin together in one claim ; in *° .\ , •'•>>= ' registered all other cases each hen-holder must register a separate claim, separately, confined to his own individual demand. (6) " Substantially in accordance." In Makins v. Robin- Compliance son, 6 O. R. 1, an objection was taken to a claim, on the ground Y statutory that the name of the person who was the "owner" at the how far essen- time the claim was registered, was not mentioned in it. The ^ lien-holder in that case was employed by Robinson & Elliott, who, after the lien had attached, had sold their interest to Poussette. The names of Robinson & Ellicjtt alone appeared in the registered claim as "owners." On this point Ferguson, Omission J., said, " It was urged for the defence that the registration ?/ ^^^^^ o* of the lien was not good, because the name of Poussette, who eSect of. was the ' owner' at the time, was not mentioned in it. On this subject I have looked at some of the American cases. In the case of Jones v. Hhairhan, 4 Watts & Serg, at p. 262, Gibson, C. J., says : ' But as the claim is against the build- 60 THE MECHANICS LIEN ACT. Sees. 17, 18. Affidavit by 'Unauthorized ipersons. Registration •of claims. Fee. Mode of regis- tration. ing instead of the person, and as the name is only a circum- stance of description to specify the property and give notice to purchasers, entire accuracy in regard to the ownership may not be indispensable ; the more so as the statute expressly requires no more than the name of the reputed owner, and it might be sufficient to file it against the past, or present one. It is certain, however, that the name of the owner when the building was commenced satisfies the requirements of the law.' " Ferguson, J. , after referring to the language of section 2, s.s. 3, and section 16, proceeds, " Yet I am of the opinion that the reasoning in the case to which I have referred applies, especially when I look at the date of the conveyance to Poussette, and the allegation of the plaintiff that he did not know anything of it, and I am of opinion that this alleged defect is not fatal, although it has been said that the statute relative to mechanics' liens, being in derogation of the com- mon law, should be strictly complied with." The making of the affidavit verifying the claim by a person not authorized by the statute to make it has been held a fatal defect : Grant v. Dunn, 3 O. R. 376. 18. — (1) The registrar, upon payment of his fee, shall register the claim, so that the same may appear as an incumbrance (a) against the land therein described. R. S. 0. 1877, c. 120, s. 5 ; 47 V. c. 18, s. 4, j^drt. (2) The fee for registration shall be twenty-five cents ; if several persons join in one claim, the registrar shall have a further fee of ten cents for every person after the first. 45 V. c. 15, s. 11. (3) The registrar shall not be bound to copy in any registry book any claim or affidavit, but he THE mechanics' LIEN ACT. 61 shall number each claim, and shall insert in the Sees. 18, 19, alphabetical and abstract indexes (b) the like par- ticulars as in other cases ; he may describe ' the nature of the instrument as " Mechanics' Lien." 45 V. c. 15, s. 11. (a) " So that the same may appear as an incumbrance." Effect of The omission of a registrar to index a registered instru- default of " . , registrar. ment, will not deprive it of its priority as against a subsequent purchaser, or mortgagee, for value, without notice : Laivfie v. BathbuH, 38 U. C. Q. B. 255. (b) " And shall insert i)i the alphabetical and abstract indexes.'" The omission of a registrar to comply with this direction, will not deprive the lien of its priority, as against a subsequent purchaser, or mortgagee, for value, without notice of it : Lawrie v. Batlibun, supra. 19. Where a claim is so registered, the person Registry Act entitled to the lien shall be deemed a purchaser 2^'>'o stat^.^iu. ^' tanto (a), and within the provisions of The Registry Act, but except as herein otherwise provided (b), The Registry Act shall not apply (c) to any lien arising under this Act. R. S. 0. 1877, c. 120, ss. 4 (3), 26. (a) " Shall be deemed a purchaser pro tanto." The benefit Lien-holder of the provisions of The Registry Act is confined to persons ^ purchaser, who are purchasers or mortgagees, for value, without actual notice, (see The Registry Act, ss. 76, 82). In favour of such persons, by registration of the instruments under which they claim, priority is secured over other instruments prior in date but not registered, and of which they have no actual notice. 62 THE MECHANICS LIEN ACT. Section 19. ■Claim of lien-holder superior to that of execu- tion creditor. Kegistration of lien, efifect of. A person who registers a mechanics' lien is, under this sec- tion, therefore, entitled to claim priority over an unregistered mortgage or other conveyance made by the owner, previous to the registration of such lien, and of which the lien -holder had not actual notice. A lien-holder is, therefore, placed in a better position than an execution creditor, who has no better right than his execution debtor: Bussell v. Russell, 28 Gr. 419. Prior to registration, a mechanics' lien is valid, and binding on the land, and it would seem to be the intention of the Act that the registration of the lien, within the time prescribed by sections 20 and 21, should not have the effect of postponing the lien to the date of its registration, but rather of continu- ing the charge created by the lien, as from the date at which it originally attached. If this be the correct interpretation of the Act, then, in order to postpone a registered lien-holder to a prior unregistered instrument, it would be necessary to show that the lien-holder had actual notice of the prior unregistered instrument some time previous to his acquiring his lien, and not merely previous to his registering it. Notice to For instance, a mechanic may acquire a lien by virtue of oTprior unreg- Commencing certain work, (see section 4), and after the com- istered claims, mencement of the work, and before he has registered his lien, effect of. i^g j^g^y acquire actual notice of an unregistered mortgage, his subsequent registration of his lien would not deprive him of the priority he had acquired before he had notice of the lien. It is true that it has been held, in Hynes v. Smith, 8 P. R. 73 ; 27 Gr. 150 ; that a mortgage created subsequently to the acquisition of a lien, but registered prior to the lien, was entitled to priority over the latter. That decision, however, is not very satisfactory, as the two judges who arrived at that conclusion seem to have overlooked the effect of sections 5 and 2, s.s. 3, which provide that the lien is to bind not only the interest of the " owner," but also of all persons claiming under him whose interests are acquired subsequently to the THE mechanics' LIEN ACT. 63 lien ; and also this section, now under consideration, which Section 19. declares The Registry Act is not to apply to liens except as otherwise provided. Proudfoot, J., who dissented from the other two members of the court, alone considered the effect of these sections. It is, therefore, open to doubt whether Hynes v. the reasons given by the majority of the Court for the decision J^^' in the case of Hynes v. SmitJt are correct. In McVean v. Ti^n, effect of. Tiffin, 13 App. R. 1, it was held that a mortgagee, who had registered his mortgage prior to a mechanics' lien being acquired, but who did not actually advance the money secured thereby until after the acquisition of the lien, was, nevertheless, not a subsequent incumbrancer to the lien- holder. In this case, too, the eliect of sections 5, and 2, s.s. 3, and the section now under consideration, does not appear to have received the attention of the court. It is possible, that these cases may be upheld on other grounds than those assigned in the judgment of the court : see ante, p. 9. (b) '^Except as herein othervnse provided." The exception How far referred to is that contained in section 22, which provides R!• V, J^^ 4. " ,>^<-,'es, sixty It is this provision as to the sixty day* ^ich seams to cpn*'^^^^.^ j^j, rggig. stitute the real difference between thafp/fbvisipn^of tnis^^ec- tration, tion and section 21 as to registration]^! TJi^v^ity daji^fr^ the last day's labour is the ultimate lien for wages can be registered where'^jg^^gssfllSges con- ferred on such liens, by sections 6 and 9, are claimed. (e) "Such lien." That is to say, a lien for thirty days' wages or less. (/) ^^ Shall have the same priority." A palpable blunder in Priority of this section, as originally passed, has been corrected in the hens, revision. The section originally read that the lien shall have the same priority " before as after registration." It may be doubted whether this section, as it now stands, is anything more than a declaration of what the law already was before it was passed ; and although this section is confined in terms to liens for wages for thirty days or less, it is questionable whether the effect of the statute is not to give to all liens, irrespective of whether they are for wages, the like privilege. It would seem unlikely that the statute intended to give a lien-holder, without registration, a priority over persons dealing with the owner subsequently to the accrual of his lien, as it apparently does by section 2, s.s. 3, s. 19, and to take that priority away upon the lien-holder subsequently registering his lien within the period prescribed by section 21. The cases of Hyaes v. Smith, 27 Gr. 150, and McVean V. Tiffin, 13 App. R. ] , which have been previously referred to, ante, p. 10, however, render this point by no means free from doubt ; and it is open to argument that, there being this express provision in favour of a particular class of liens, it is not the intention of the statute to confer the same privilege 68 THE MECHANICS LIEN ACT. Sees. 20, 21. on the liens not included in the specified class, (see Reiithart V. Shutt, 15 O. R. ). But, as has been already pointed out, ante, p. 10, the priority of a lien-holder was not before the passing of this section lost merelj' by its being subse- quently registered, but by reason of the prior registration of some conflicting claim, and it seems doubtful whether this sub- section really accomplishes anything : all that it says, is, that the lien is to have the same priority " after as before regis- tration." What priority would it have before registration over a subsequent conveyance or mortgage for value, without notice, registered prior to the lien ? : if McVean v. Tiffin, supra, be correct, none ; consequently, the subsequent regis- tration of the lien will not give it any priority. Time for registering claim not arising under 3. 6. 31. In other cases (a) the claim may be regis- tered (b) before or during the progress of the work, or within thirty days from the completion thereof, or from the supplying or placing the machinery (c). 45 V. c. 15, s. 7. (a) ^' In other cases." That is, in all cases except the case of liens for wages for thirty days or less, where the privileges of sections 6 or 9 are claimed. Registration of lien, neces- sary to secure priority. (b) '■^ May he. registered." If the cases of Hynes v. Smith, 27 Gr. 150, and McVean v. Tiffin, 13 App. R. 1, are a correct exposition of the statute, it would seem, that in order to secure the lien-holder's priority, as against persons dealing with the " owner " subsequently to the commencement of the work, the lien must be registered before the instrument under which the owner's subsequent vendee or mortgagee claims title, otherwise the lien-holder will be postponed thereto, unless the prior registered transferee had actual notice of the lien before the registration of his deed : Wanty V. Robins, 15 O. E. . The accuracy of the reasons given THE mechanics' LIEN ACT. 69 for those decisions appears to be open to some doubt, Section 21. (see Makins v. Bobinson, 6 O. R. 1). But even though a subsequent grantee or mortgagee of the "owner" may not be able to acquire priority over a lien-holder, merely by prior registration of the instrument under which he claims, yet where he has acquired a legal title, and has had no actual knowledge of the lien, it is possible (apart altogether from Uie Registry Act) that he could, under such circumstances, successfully claim priority over the lien. A mechanic's taking a promissory note, which matures and Taking secu- is dishonoured before the expiration of the period limited by ^ waiverof this section for registering a lien, is no waiver of his right to right of lien, register a lien : Lindop v. Martin, 3 C. L. T. 312 ; Makins V. Robinson, 6 0. R. 1 ; and see VanCourt v. Bushnell, 21 111. 624. But the taking of a security, inconsistent with the right of lien, is a waiver of the lien : see Kinzey v. Thomas, 28 HI. 502 ; Benneson v. Thayer, 23 111. 374 ; or where a negotiable note has been taken for the debt, and has been negotiated : Clement v. Newton, 78 111. 427 ; Croskey v. Corey, 48 111. 442. (c) " Or from supplying or placing the machinery." These Thirty days, words appear to be intended to include not only "machinery," T ^°^' but all materials. But where goods were furnished from goods supplied time to time as required, not under any contract, it was held ^f"'" "™® each supply was a separate and distinct transaction : Chad- ivick V. Hunter, 1 Man. R. 39. When materials or machinery are delivered under a single contract piecemeal, it would seem that the thirty days in which the action must be brought, or the lien registered, would not commence to run until there had been a complete delivery of all the materials, or machinery, included in the particular contract. Thus, where goods are furnished from day to day by a store-keeper for the purposes , of a building, the thirty days run from the date of the fur- nishing of the last item : Lindop v. Martin, 3 C. L. T. 312. 70 THE MECHANICS LIEN ACT. Sees. 21, 22. Remedying defects, time not extended by. But where a material-man has a single contract for the sup- ply of materials to a contractor who has entered into separate and distinct contracts with several " owners," the time for filing a lien by such material-man against any one of the " owners," is not to be measured with reference to the duration of the deliveries under the contract between the material-man and the contractor, but by the completion of the work by the contractor for the " owner " against whom the lien is claimed : Re Moorehouse d- Leak, 13 O. R. 290. Where the work has been done, or the materials have been fur- nished, and accepted by the " owner," the existence of some slight defect, which is subsequently remedied by the con- tractor, will not be deemed to extend the time for registering the lien until thirty days from the time the defect is reme- died, even though the work or materials were accepted on the understanding that the defect was to be remedied : Neill v. Carroll, 28 Gr. 30 (affirmed on rehearing, Blake, V.C., diss.) lb. 339 ; Makins v. Robinson, 6 O. R. 1 ; Kelly v. McKenzie, 1 Man. R. 169. But where the completion of the work was delayed, its subsequent completion after a long delay was held to extend the time for registering the lien : Irwin v. Beynon, 4 Man. R. 10. Goods sup- Where a material-man supplied goods to a contractor on plied to "con- credit, and charged them in a running account, and the con- tractor "on . , . ,.,,■/■ •■> iC " running ac- tractor received moneys from time to time from the owner, count, lien for. ^hich he paid over to the material-man, and no appropriation of payments was made by either the "owner" or the "contrac- tor," and the material-man credited his receipts generally in account with the "contractor," and filed a lien for the balance, including in such lien the latest items of his account, it was held that he was entitled to the lien claimed : Lindop v. Martin, 3 C. L. T, 312. When unregis- tered lien shall cease. 33. Every lien which has not been duly reg tered (a) under the provisions of this *"^ °'^' ;is- Act shall THE mechanics' LIEN ACT. 'H absolutely cease to exist on the expiration of the Section 22. time hereinbefore limited for the registration there- of, unless in the meantime (b) proceedings are instituted to realize the claim (c) under the pro- visions of this Act, and a certificate thereof (d) (which may be granted by the Court or a Judge (e) before whom or in which the proceedings are insti- tuted), is duly registered (/) in the registry office of the registry division wherein the lands in respect of which the lien is claimed are situate. K. S. 0. 1877, c. 120, s. 20. (a) " Not been duly registered." The registration of a lien Registration for work must be made before or during its performance or ^^ ^3°^^'^®'^ within thirty days after its completion {section 21) ; and in the case of a lien for wages, where the additional privileges attached to such liens are claimed, the lien must be regis- tered at latest within sixty days from the performance of the last day's labour in respect of which such wages are claimed, (section 20) ; and a lien for materials must be registered within thirty days after they have been furnished or placed upon the land, (section 21). Where the period of credit agreed to by the mechanic extends beyond thirty days after the completion of the work, or the furnishing of the materials, the registration of the claim is absolutely necessary in order to preserve the lien, because no action can be brought to ■enforce the lien until the period of credit has expired : Burritt v. Benihan, 25 Gr. 183 ; Neill v. Carroll, 28 Gr. 30, lb. 339. (b) " Unless in the meantime." It is not essential to the Action to preservation of the lien that the proceedings should have tJJ^°/^i.^'®°' been instituted by the lien-holder himself ; it will be suffi- bringing. 72 THE mechanics' lien act. Section 22. cient if they have been instituted by some other lien-holder of the same class, (see section 30 : Bunting v. Bell, 23 Gr. 584 ;. Hovenden v. Ellison, 24 Gr. 448 ; McPherson v. Gedge, 4 O. R. 246). But an action by one lien-holder will not preserve the liens of other lien-holders of the same class longer than thirty days after the issue of the writ, unless, in the mean- time, such other lien-holders file their claims in the action in the office from whence the writ issued, (section 30, s.s. 1). And an action by one lien-holder would not have the effect of reviving the lien of another lien-holder of the same class- which had expired under this section before the action was commenced. In order to entitle a lien-holder to maintain an action to enforce his lien, the period of credit (if any) between the "contractor" and "owner" must have expired: Burritt v. Benihan, 25 Gr. 183 ; and it would seem that where the action is brought by a "sub-contractor," the period of credit (if any) between him and the "contractor" or "sub-con- tractor " by whom he was employed must also have expired. This section applies to every claim for relief under the Act. Where a lien-holder filed a bill and obtained a decree to enforce his lien as against the " owner," it was held he could not afterwards, and after the lapse of the time for bringing an action, file another bill against a prior mortgagee to obtain relief under section 5, s.s. 3 : Bank of Montreal v. Haffner,- 29 Gr, 319 ; 10 App. R. 592, S. C, s«6 nom. Bank of Mont- Subsequentin- real v. Worswick, Cass. Dig. 289. By analogy to the prac- cumbrancers ^^qq ^^ mortgage actions for sale, or foreclosure, it has here- should be t i , ^ ■ ■> made original tofore been customary not to add subsequent incumbrancers parties. ^s parties defendant to the writ ; but to add them as parties in the Master's office. It must be remembered, however, that even in mortgage actions, all parties interested as sub- sequent incumbrancers had formerly to be made parties to the bill, and that this practice continued until the General Orders of 1858, (see Chy. Ord. 441-4) altered it. These- Orders, however, are in terms confined to mortgage actions^ THE mechanics' LIEN ACT. 73 in which there is no thirty days' limit for commencing the Section 22, action, as is the case in actions to enforce mechanics' liens. The principle of Baitk of Montreal v. Haffner seems to require that actions to enforce mechanics' liens must be com- menced as against all parties against whom relief is claimed within the time prescribed by sections 22, 23. As regards par- ties added in the Master's office, the action is commenced only from the time they are added, and not from the date of the issue of the writ of summons : see iu/ra, note c. (c) ^^Proceedings are instituted to realize the claim." The Action should proceedings must be instituted against the proper parties, against all within the prescribed time. Where parties are added by parties inte- amendment after the action is commenced, the action as prggcribed '" against such parties does not relate back to the issue of the time, writ, but is only deemed to have been commenced as against them at the time they are added, (see Shaw v. Cunningham, 12 Gr. 101 ; MacDonald v. JVright, 14 Gr. 285-6 ; Bumble v. Larush, 25 Gr. 552 ; 27 Gr. 187). The " owner," i.e., the person whose interest in the land Parties to IT J 1 1. 1 actions to in question is sought to be sold, must always be made a enforce liens» defendant. And where the person with whom the contract was made has, after the lien attached, sold, or mortgaged, or otherwise transferred, or incumbered his interest, in the land in question, it would seem proper to make the trans- feree also a defendant by the writ. Where such subsequent transferee has registered the instrument under which he claims, prior to the lien, it has been held he cannot be added as a subsequent incumbrancer in the Master's office : Hynes V. Smith, 27 Gr. 150 ; McVean v. Tiffin, 13 App. R. 1 ; i?e Craig, 3 C. L. T. 501 ; Beinhart v. Shutt, 15 O. R. ; and see ante, p. 8, section 2, note e. If, notwithstanding the prior registration of a subsequent transfer by the owner, the lien- holder claims that his lien is a prior charge to that of the transferee, that question can only be raised by making the transferee an original defendant. 74 THE MECHANICS LIEN ACT. Section 22. Prior mort- gagee. Where the action is brought by a aub-contractor, the con- tractor, or sub-contractor, by whom the plaintiflFwas employed, is also a necessary defendant. Where relief is claimed against a prior mortgagee, under section 5, s.s. 3, such mortgagee must also be made an original defendant : Bank of Montreal v. Haffner, 29 Gr. 319 ; 10 App. R. 592 ; S. C. sub nam. Bank of Montreal v. Worsivick, Cass. Dig. 289. ■Certificate Us pendens, How issued. {d) " A certificate thereof.^' This means a certificate that the proceedings have been commenced. The certificate should show the names of the parties, plaintiflf and defendant, to the action, and should also accurately describe the land over which the lien is claimed as it is described in the proceedings. For Form of Certificate of lis pendens, see Appendix. The certificate in the High Court may be under the seal of the court, or the seal of office (if any) of any officer issuing the same : R. S. O. c. 114, s. 47. Where the seal of a Court of Record is affixed to the certificate, it proves itself, and can be registered without affidavit, (see R. S. 0. c. 114, s. 46). But where the certificate is not under the seal of a Court of Record, semble, an affidavit of attestation is necessary. Division Courts are not Courts of Record, (see Division Courts Act, B. S. 0. c. 51, s. 7 ; but see Corsant v. Taylor, 10 C. L. J. 321). An affidavit would also seem neces- sary where the certificate is issued under a seal of office, not being the seal of the court. (e) "-By the Court or a Judge." These words are not intended to require a special application to the Court, or a Judge, for the certificate. Where the action is commenced by writ, the certificate is issued and signed by any of the officers mentioned in R. S. 0. c. 114, s. 47, in the same way as a certificate of lis pendens is issued in any other action. THE mechanics' LIEN ACT. 75 Where the action is commenced by writ in the County Sees. 22, 23. ■Court, the Clerk of the Court would seem to be the proper officer to issue and sign and seal the certificate, but li. S. 0. c. 114, s. 47, makes no express provision for the issue of such certificates from County Courts : see, however, B. S. 0. c. 47, s. 28. But where the proceedings are, by way of sum- mary application to the Judge of a County or Division Court, under section 28, the certificate should probably be granted and signed by the Judge to whom the application is made. (/) "Duly registered." The proceedings must not only Registration have been commenced within the thirty days, but the certifi- tf^Jfw"''^"''' cate must have been registered within that period, or the lien will cease. Where the land in question is situate partly in two registration divisions, a certificate of the commencement of the proceedings must be registered in both divisions. A mistake of the registrar in indexing or omitting to index the certificate will not invalidate its registration : Lawrie v. Rathbun, 38 U. C. Q. B. 255. It would appear to be a sufficient registration of a lis pendens within the meaning of this section, if any action be registered within the prescribed time in which the lien-holder would be entitled to recover his claim : see Bunting v. Bell, 23 Gr. 584, and per Osier, J. , McPhers('7i v. Gedge, 4 O. R. 264 ; and see section 30. 33. Every lien which has been duly registered (a) when regia- under the provisions of this Act shall absolutely shall cease. cease to exist (b) after the expiration of ninety days after the work has been completed, or materials or machinery furnished, or wages earned, or the expiry of the period of credit (c), where such period is mentioned in the claim of lien filed, unless in the 76 THE MECHANICS LIEN ACT. Section 23. Action to enforce reg- istered lien, time for. meantime proceedings are instituted to realize the claim under the provisions of this Act, and a cer- tificate thereof (which may be granted by the Court or Judge (d) before whom or in which the proceedings- are instituted), is duly registered in the registry office of the registry division wherein the lands in- respect of which the lien is claimed are situate.. E. S. O. 1877, c. 120, s. 21. (a) " WTiich has been duly registered.'" The preceding sec- tion, having prescribed the time within which an action must be brought to enforce unregistered liens, the present section prescribes the time within which an action must be brought to enforce a registered lien. By registering the claim withia the thirty days after the completion of the work, or furnish- ing of the materials, an additional period of sixty days is. gained for commencing an action to enforce the claim. Where a contractor, working for several "owners," haS' but a single contract for the supply of materials with the material-man, the time for the latter filing a lien against any one of the " owners " is not to be measured with reference ta the duration of deliveries under the contract between the material-man and the " contractor," but by the completion of the work by the contractor for the "owner" against whom the lien is claimed : jRe Moorehouse Summary pro- (e) ^' By summons and order." It is presumed that what is enforcflien. intended by this section is that instead of resorting to the ordinary procedure of the Court by summons, under The Division Courts Act, B. S. 0. c. 51, s. 94, or by a writ of summons under the usual procedure of the County Courts, an application may be made to the Judge, in the first instance, for a summons calling on the parties interested to show cause why the applicants' lien should not be paid, or why in default the land, or interest therein, subject to the lien, should not be sold for the satisfaction of the lien. Whether sum- Assuming this to be the procedure intended, it may be i^g7ke^e''ptli?e doubted whether the provisions of section 30, s.s. 1, apply to other liens? such a proceeding. That sub-section provides that "any action" brought by a lien-holder shall be taken to be brought on behalf of all the lien-holders of the same class, but the term "action" seems to be confined to proceedings com- menced by writ ; and this view is borne out by the concluding words of that sub-section. Although other lien-holders, therefore, who are not actually made parties to the proceed- ings, may not be entitled to the benefit of such proceedings, for the purpose of keeping their liens alive, yet it would seem that they should, nevertheless, be made parties thereto, in THE mechanics' LIEN ACT. 85 order to bind them by the jiroceedings ; and if they actually Section 28. are made parties, it may be presumed that it would not be necessary for them to commence separate and independent proceedings on their own behalf in order to maintain their liens in force : see Henry v. Bowes, 3 C. L. T. 606. The application to the Judge should be supported by an Evidence on affidavit of the plaintiff establishing the applicants' prima summary jacie right to a lien on the land, or interest m the land, he seeks to have sold, and certificates of the Registrar and Sheriff of the Division or County in which the lands are situate should be produced, showing who the other parties are, whose interests are bound by the plaintiff's lien, and also all those who have liens or incumbrances on the land, who would be entitled to participate in the proceeds of the land in case it should be sold. The summons to be issued by the County Judge should be addressed to, and served upon, all these parties, in order that they may be brought before the Court to be bound by the orders which may be made in the matter. For Form of Summons, see Appendix. A certificate of lis pendens may be granted by the Judge Lis pendens. for registration : see section 22. (/) " And may take accounts^ Upon the return of the Accounts to summons, proof of its due service on all parties will have to ^^ taken on mi T 1 -11 1 ^ summary be given. Ihe Judge will then have first to determine any applications. question that may be raised as to the liability of the estate, or interest of any of the parties summoned, to satisfy the lien of the plaintift'. If any of the parties summoned establish that their claims to the land are paramount to the plaintifls' lien, then as to them the summons should be dismissed. Ques- tions of this kind having been settled, the next thing to be done will be to ascertain whether or not anything is due from the "owner." If nothing is due, then the "owner's" interest .86 THE MECHANICS LIEN ACT. ■.Section 28. in the land is not liable to any lien, (see sections 8, 10), and the summons should be dismissed altogether. Having ascer- tained what is due from the "owner," an account should be taken of the claims of the plaintiff and the other lien-holders and incumbrancers who have been summoned, and what pro- portion of the moneys due by the " owner " they are respec- tively entitled to ; and a day should be appointed for the "owner" to pay the amount found due from him to the lien- holders and incumbrancers, according to their respective interests therein. The most convenient course would proba- bly be to order him to pay the whole amount into court. The day to be named for payment should not be less than one calendar month from the making of the order : see post, section 30, ss. 3. Where the claims are not numerous, it will probably be found that the Judge himself will make the necessary inquiries, and take the necessary accounts ; but where the matter is complicated, or the claims numerous, the Judge may refer the matter to the Clerk of the Court, or, under R. S. c. 47, s. 34, to the Master of the Supreme Court having jurisdiction in the County where the proceedings are being carried on, to make the inquiries and take the accounts ; but a reference to a Master does not seem to be warranted in Division Court cases. Form of order The form of the order to be made will of course depend on on summary ^hjch of these two courses is adopted. In the former case apphcation. . ^ . , . the order would contain what is usually contained in a judg- ment and a Master's Report in actions to enforce liens in the High Court. In the latter case it will be more in the form of a judgment only. Parties en- In taking the account of the amount due from the "owner," of takin'^*' '°^ *^^ *'^^® lien-holders are entitled to notice ; and in taking the accounts. accounts of what is due to the lien-holders, both the "owner" and the person primarily liable to the lien-holder should also THE mechanics' LIEN ACT. 87 liave notice, as the latter is liable to execution for any balance Section 28. which may remain due to the lien-holder after the sale of the land : see section 30, s.s. 6 ; and other lien-holders are also interested in keeping down the claims of their felhjw lien- holders, and should have notice of the taking of the accounts of the amounts due to them. See post, section 30, note/, as to the principle on which the different classes of lien-holders should be ascertained, and the amount due by the "owner" distributed. This may be subject to modification when some of the lien-holders have charges upon the price payable by the " owner " under sections 9, 11, and others have not. ((/) " May direct the sale of the estate and interest charged." Sale. A sale cannot be ordered to take place before the expiration of one month from the making of the order, (see section 30, s.s. 3), and onlv the interest of the "owner," whatever it Property 111 may be, can be sold. Where other persons have interests in ^* ^^ ®" the land, whose rights are paramount to those of the lien- holders, the sale must be subject to their rights ; unless they come in and consent to a sale, which is sometimes done on the terms of their claims being a first charge on the purchase money. (h) " Amj conveyance under the seal." The County Judge, Conveyance being ex-officio Judge of the Division Court, all conveyances T'ftpn ^f made in pursuance of the order of either the Division, or County Courts, are to be made by him. The statute only speaks of the seal of the Judge, but the signature of the Judge should also be appended to the instrument. The con- veyance should recite the proceedings authorizing the sale, .and it would seem that it is intended that the County Court Judge shall be the granting partj' in the conveyance, and should convey in a similar manner to a sheriff selling under execution. Only the interest authorized to be sold can be conveyed . (i) ^^ Shall be effectihol." If the Court by which a sale is Effect of. ■ordered has no jurisdiction to direct the sale, it is very doubt- 88 THE mechanics' lien act. Sees. 28,29,30. ful whether this section would give validity to the conveyance. The consent of the parties cannot give jurisdiction, and a fortiori — the passive acquiescence of the parties in the Court exercising a jurisdiction it does not possess — would be equally ineffectual. Enforcing lien 39. In casGS other than those specified in the ' preceding section the lien may be realized in the High Court, according to the ordinary procedure of that Court (a). E. S. 0. 1877, c. 120, s. 13. (a) For forms of proceedings in actions brought in the High Court of Justice to enforce mechanics' liens, see Appendix. Action by lien- 30. — (1) Any number of lien-holders may join holder to be for . ,• i joint benefit, in One action, and any action brought by a hen- holder shall be taken to be brought on behalf of all the lien-holders of the same class (a) who shall have registered their liens before or within 30 days after the commencement of the action, or who shall within the said 30 days file in the proper office of the Court from which the writ issued a statement, entitled in or referring to the said action, of their respective claims. Prosecution of (2) In the evciit of the death of the plaintiff, or plaintiff dies, his refusal or neglect to proceed, any other lien- holder {h) of the same class who has registered his lien or filed his claim in the manner and within the time above limited for that purpose may be allowed THE mechanics' LIEN ACT. 89 to prosecute the action on such terms as may be Section so. deemed just and reasonable. 47 V. c. 18, s, 6. (3) In case of a sale of the estate and interest Time when charged with the lien, the Court or Judge may made, direct the sale to take place at any time after one month [c) from the recovery of judgment, and it shall not be necessary to delay the sale for a longer period than is requisite to give a reasonable notice thereof. 45 V. c. 15, s. 12. (4) The said Court or Judge may also direct the The Court ... may order sale of any machinery {d) and authorize its removal, sale. R. S. 0. 1877, c. 120, s. 14. (5) Where judgment is given in favour of a lien, Costs. the Court or Judge may add to the judgment (e) the costs of and incidental to registering the lien, as well as the costs of the action. 45 V. c. 15, s. 14. (6) Where there are several liens under this Act Several liens, against the same property, each class of the lien- holders (/) shall, subject to the provisions of sec- tions 5, 9 and 11, rank jJ^^^i passu for their several amounts, and the proceeds {g) at any sale shall, subject as aforesaid, be distributed amongst them pro rata, according to their several classes and rights {}(), and they shall respectively be entitled to execution (i) for any balance due to them respec- ^0 THE mechanics' LIEN ACT. Section 30. tivelj after said distribution. E. S. 0. 1877, c. 120, s. 17. :Securitymay (7) Upon applications to the County Court, in henoUiel claims Under $200 (j), and to the High Court in other cases, the Court or Judge may receive security or payment into Court in lieu of the amount of the claim, and may thereupon vacate the registry of the lien. Registry may (8) The Court or Judge may annul the said registry upon any other ground {k). K. S. 0. 1877, c. 120, s. 23. Wrongful (9) In any of the said cases mentioned in sub- filTtodis- sections 7 and 8, the Court or Judge may proceed charge, costs. ^^ ^^^^^, ^^^ determine the matter of the said lien (l), and make such order as seems just, and in case the person claiming to be entitled to such lien has wrongfully refused to sign (in) a discharge thereof, or without just cause claims a larger sum than is found by such Court or Judge to be due, the Court or Judge may order and adjudge him to pay costs to the other party. R. S. 0. 1877, c. 120, s. 24 ; 47 V. c. 18, s. 7. -Lien-holders (a) " Of the same class." Lien-holders of the same class of the same would appear to be those who have contracted with the same «lass, who are. ^^^^^^^ g^_ ^^ "contractors" are of the same class, (see Bunting v. Bell, 23 Gr. 584). So also all sub-contractors . THE mechanics' LIEN ACT. 91 who have contracted with the same "contractor" or "sub- Section 30. contractor" are of the same class, but the "sub-contractor" of A cannot be said to be of the same class as the sub- contractor of B, nor are a "contractor" and any "sub- contractor" of the same class, (see, however, McPherson v. Gedge, 4 O. R. 2C0, per Gait, J.). Where a lien-holder insti- tuted a suit on the 7th July, within the prescribed time, but omitted to serve the bill, and subsequently on the 19th Jan- uary following the bill was dismissed for want of service, but before its dismissal, on the 15th July, another lien-holder of the same class commenced a suit ; it was held that the claim of the plaintiff, in the suit commenced on the 7th July, was kept in force by the suit subsequently commenced on the 15th July : Bunting v. Bell, 23 Gr. 584 ; but see Orainger v. Grainger, 1 Chy. Ch. R. 241. {b) "J.?K/ other lien-holder." Other lien-holders of the Right of other •same class, not parties to the action, who are entitled under fg "ifgrvg^^e sub-sec. 1 to the benefit of the action, are bound to see that in action. it is prosecuted to judgment, or it maybe dismissed for want of prosecution, or compromised, (see Smith v. Doyle, 4 Apj). R. 477) ; but, where the plaintiff has consented to a dismissal of the action, it may nevertheless be restored on the appli- cation of any other lien-holder of the same class, entitled under sub-section 1, except as to the claim of the original plaintiff, even though the dismissal may have taken jjlace before judgment obtained: McPherson v. Gedge, 4 O. R. 246. A lien-holder thus intervening must indemnify the original plaintiff against all costs, past and future, and if he carry on the suit in the name of the original plaintiff, he must also give the defendant security for his costs. Ih. After judgment, no action on behalf of a class can properly Action not to be dismissed, even by consent of the plaintiff; the proper "f^'^'®.^"*^^^" order in such a case is merely to stay the proceedings, but ment. without prejudice to the rights or any other of the class 92 THE mechanics' lien act. Section 30. entitled to the benefit of the action, to intervene and assume the conduct of the action, (see Arnhery v. Thornton, 6 P. R. 190), and it would seem that such is the proper order to make on any application to dismiss an action brought to enforce a mechanic's lien by consent of plaintiff, whether the applica- tion be made before or after judgment. It is doubtful whether any lien-holder could intervene and apply to carry on the action whose claim was not actually payable at the time the action was commenced : see Burritt v. Renihan, 25 Gr. 183. Other lien- The other lien-holders of the same class as the plaintiff are same class ^^^ usually made parties by the writ of summons ; they are added in M. O. added as parties in the Master's Office. The judgment hitherto has usually directed the Master to inquire as to incumbrances, etc., and, according to the practice prevailing in mortgage actions, he adds, as parties in his office, not only all other lien-holders entitled to the benefit of the action, but also all others appearing to have liens, or incumbrances, on the land, subsequent to the plaintiff. Whetherother It may be doubted, however, whether subsequent incum- cumbrancers" brancers, other than lien-holders of the same class as the should not be plaintiff, should not be made parties by writ, and whether defendantsT ^"^'^ incumbrancers, if not made parties within the time limited by sections 22, 23, for commencing an action to enforce the lien, would not be entitled to say that so far as their incumbrances are concerned they are released from the lien : see Bank of Montreal v. Eaffner, 10 App. R. 592 ; S. C, sit& nom. Bank of Montreal V. irorsiric^-, Cass Dig. 289. The prin- ciple of this case seems to have a wider application than has been generally supposed. Carried to its logical conclusion, it would appear to determine that the action to enforce a lien must be commenced not only against the "owner," but against all other persons having any interest in the land, THE MECHANICS LIEN ACT. 98 whose rights are subject to the lien, within the time pre- Section 30. scribed by sections 22, 23, and that it is too late to add such parties as defendants in the Master's Office when that period has expired. The practice in mortgage suits was originally to make all parties interested original parties to the suit. And in actions to enforce liens it would seem that this prac- tice ought still to be pursued with the exception as to lien- holders of the same class as the plaintiff. Ill order to ascertain who are the other lien-holders of the Other lien- same class as the plaintiff, who should be added as parties in JoJ^ascer-^^ ' the Master's Office, a search must be made in the action for tained. all claims of lien-holders filed therein within thirty days after the writ issued, and also in the Registry Office, for all liens registered up to the expiry of the said period of thirty days : it is not, however, necessary to search whether any other Actions have been commenced, as such other actions could .only have the effect of keeping alive liens in those particular .actions : see Grainger v. Grainger, 1 Chy. Ch. R. 241 ; but .Bee Bunting v. Bell, 23 Gr. 584. Although other lien-holders of the same class are usually Where made .made parties in the Master's Office, yet when any direct defendants, relief is claimed by the plaintiff' against any such lien-holder, he should be made a defendant by writ. Where another lien-holder of the same class as the plaintiff Costs of action subsequently commences another action to enforce his lien, jigQ^^hoi^er he cannot recover the costs of such action in that first com- menced : Henry v. Boires, B C. L. T. GOG. (c) " One month." Formerly the sale could only be effected Time for sale, at or after such time as the lands could have been sold under execution. This varied in the case of lease-holds, and free- 94 THE MECHANICS LIEN ACT. Section 30. holds, ^see The Execution Act, E. S. 0. 1877, c. 14, ss. 2-19; and see now C. R. 864, 899, 901) ; but now, in all cases, the sale may be ordered to take place at any time after the expiration of a month from the recovery of the judgment. According to the practice of the High Court, a month is allowed after the accounts have been taken for the payment of the amounts found due, and in default of payment, the sale is ordered. Sale of {d) " Any machinery.'^ This section authorizes the sale of machinery. machinery apart from the land on which it has been placed, and, notwithstanding it may have been affixed to the free- hold. Notwithstanding the generality of the words "any machinery," machinery which is not subject to the claim of the lien-holder, could not be ordered to be sold, or removed under this section (see ante, p. 19, note/). Neither is it probable that the jurisdiction hereby conferred would be exercised, except in cases where it would be for the general benefit of all parties interested that the machinery should be sold apart from the land. Costs of regis- (e) ''May add to the judgment." This provision would tering hens to appear to apply not only to the costs of registering the lien claim. of the plaintifl", but aho to the cost of registering other liens of the same class entitled to the benefit of the action. The judgment being a judgment not only for the enforcement of the plaintiS"'s lien, but those of the others of the same class, it should provide for the payment of the costs of registering the plaintiff's lien, and also those of the other lien-holders of the same class. Lien-holders (/) ''Each class of the lien-holders." These words are of the same apparently intended to mean each series of lien-holders, class, who are. ^^^ ^^^^ contracted with the same person, whether he be THE mechanics' LIEN "owner," "contractor, or " aub-cont^g,cTr^" '*^ ror. „ , , - ,_ Th^ foll<5w- ing table will serve as an illustration. /'jXe lette^ S.^ are used to designate sub-contractors, am^ the ibUics indicate those who are of the same class, anu the ^rious sijuhs the amount of their respective contracts • VcV* ' ^ VJ \> ^ y 95^ Section 30. OWNER. Contractor a. $2,000. Contractor a. $1,000. S.-C. 16. $500. S.-C. 3d. $100. I S.-C. 7e. S.-C. 4rf. $100. S.-C. 8/. $60. S.-C. 26. $700. S.-C. 5d. S.-C. 6c. ! $350. S.-C. 9/ $40. Each sub-contractor can have no greater claim on the- interest of the "owner" in the land than the person by whom he was employed ; and when a " contractor" or " sub- contractor" has employed a "sub-contractor," the claim of such "sub-contractor" must be deducted from that of the person by whom he was employed. For example, the claims- of S. -C. 16 and 26 in the above table must be deducted from the claim of the " contractor," under whom they claim ; which 96 THE MECHANICS LIEN ACT. Section 30. Plaintiff's ■costs, a first charpfe on proceeds. Distribution of proceeds amongst lien-holders. Execution, against whom it may issue. Right to, suspended till lien realized. would leave him only entitled to $800. So also the claims of S.-C. 3d, 4d, and 5d must be deducted from the claim of S.-C. 16, by whom they were employed, which would leave the latter only entitled to $250, and so on with regard to the other ''sub-contractors." (g) ^^ And the proceeds.'" That is, the net proceeds, after payment of the costs of action, if any, and of the sale, other- wise the burthen of realizing the claims of all parties would be cast upon the plaintiff or other party carrying on the pro- ceedings : see The Sherbro, 48 L. T. N. S. 767. (h) "Pro rata according to their several classes and rights.''^ This does not mean that in every case in which the sum realized from the land is insufficient to pay all the liens thereon in full — all liens are to abate in equal proportions, some liens may be paid in full, notwithstanding a deficient fund; e.g., if the dividend payable to S.-C. 3rf, as shown above, were, but for his sub-contract with S.-C. 7e — say $90 — the latter would appear to be entitled to be paid in full, and S.-C. 3d would get but $10, because he is indebted to S.-C. 7e in $80, and the latter stands in his i^lace to that amount. But lien-holders of the same class (apart from any question aris- ing under sections 5, 9, 11) are entitled to a pro rata distribu- tion ; e.g., if the dividend coming to S.-C. 4(i were less than $100, his sub-contractors 8/ and 9/ would be entitled to a pro rata share of it, 8/ being entitled to f and 9/ to | of the dividend. (i) ''Shall respectively be entitled to execution." The right to execution is only against those personally liable : generally speaking, execution lies against an " owner " only in favour of a "contractor." The right to obtain execution is here given only after the distribution of the proceeds of the sale of the property subject to the lien ; and it has been held by Rose, J., Weatherdon v, Bobinson, Q. B. D., 23rd March, 1888, that in an action to enforce the lien, the plaintiff is not, though THE mechanics' LIEN ACT. 97 he claim it by hia pleading, entitled to judgment personally Section 30. against his debtor in the first instance, but that he can only have a personal order for payment of the deficiency remaining after the property subject to the lien has been realized. The bringing of an action to enforce a lien, therefore, operates as a suspension of the right to execution against the primary debtor until the remedy to enforce the lien has been exhausted. But this, of course, in no way impairs the right of the lien- holder to abandon hia claim to a lien and sue for and recover hia claim by judgment and execution in the ordinary way. ii) " lii claims imder two hundred dollars." In this sub- Vacating lien, section the word "claims" must refer to the claim of the ^^''^^^'^^^'j. J° j^^ individual lien-holder, which is sought to be vacated or Chambers, discharged. When the claim is over $200, the Master in Chambers has jurisdiction to entertain applications for the or erection," do not seem particularly well chosen when used exempt? in reference to a mine, and though where an Act gave a lien for " materials to be used in or about a mine," powder, steel, and candles, indispensably necessary for working a mine, were held to be clearly within the statute : Keystone v. Gallagher, 5 Col. 23 ; still, it may be doubted whether materials fur- nished for working a mine could properly be said to be fur- nished for use either in its "construction, alteration, or repair," hence it is open to doubt whether materials furnished for working a mine are within this section. (c) ^' At the request of and for some other person.'^ These Materials words limit the application of this section to materials fur- procured by own6t not nished or procured by "contractors" or "sub-contractors." exempt. Materials furnished or procured by an " owner" for the erec- tion, alteration or repair of a building on his own property, are not within the section. (d) ^' Shall not be subject to execution." This section is not Exemption intended to exonerate the materials from all executions, but JF°™ execu- ' tion, how far only from executions to enforce any debts due by the person it extends. 100 THE MECHANICS LIEN ACT. Section 31. by ivhom the materials are furnished or procured, excepting such as were incurred by the latter for the purchase of the materials. The proper construction of the Act appears to require that the words " any debt " should be qualified by the words " due by the person furnishing or procuring such materials," for if the latter words were to be held to qualify only the words " other than for the purchase thereof," it would seem to follow that the materials of all buildings erected by one person for another, are absolutely and inde- finitely exempted from all liability to execution, whether against the " owner " or any other person, a result which it seems needless to say could never have been intended. Although the Act does not protect the materials from execu- tion to enforce a debt incurred for the purchase thereof, it does not follow that the materials will be in all cases saleable even under such an execution ; that will depend on whether the materials had, or had not, ceased to be the property of the debtor. After materials have become incorporated in a build, ing, they would cease to be liable to execution against the "contractor" or "sub-contractor" furnishing them, and there is nothing in this section to exonerate them from liability to enforce debts due by the "owner." But such executions might be subject to the right of lien, if any, acquired by the "contractor" or "sub-contractor" under this Act. Execution, (e) " Due by the person furnishing or procuring such ma- agamst terials." These words are to be read in connection with the 'owner, will , . , . .,, , bind materials previous part of this section, from which it will be seen that incorporated ^^^y j,g£gj. ^^^y ^^ persons furnishing or procuring materials for the specific purpose mentioned ' ' at the request of, and for, some other p>erson" It is only against certain debts of such persons that the materials are protected. In other words, this section exempts materials from liability for certain debts due by the person hy whom, they are furnished or procured, but does not exempt them from liability to execution for any THE mechanics' LIEN ACT. 101 debts due by the person to, or for, whora they have been fur- Sees. 31, 32. nished or procured. For example, materials furnished by a "contractor" for an "owner" would be free from liability for the debts of the " contractor," except such as may have been incurred for the purchase of such materials ; but they would not be exempt from liability to execution for any debts of the " owner " so soon as the materials should, by incor- poration into his building, or otherwise, have become his property. 32. — (1) Every mechanic or other person who Mech anica iiij I'lij J. • 1 entitled to has bestowed money or skill and materials upon uen on a any chattel or thing in the alteration and improve- seiuhechauei ment in its properties or for the pm*pose of impart- ^ontM pay- inff an additional value to it so as thereby to be ™®^* '® °°*^ " -^ made, entitled to a lien (a) upon such chattel or thing for the amount or value of the money or skill and materials bestowed, shall, while such lien exists {b) but not afterwards, in case the amount to which he i^entitled remains unpaid for three months (c) %. after the same ought to have been paid (d) have the right in addition to all other remedies provided by law, to sell the chattel (e) or thing in respect of which the lien exists, qn^ving one week's notice {/) by advertisement in a newspaper published in the municipality in which the work was done, or in case there is no newspaper published in such muni- cipality, then in a newspaper published nearest thereto, stating the name of the person indebted, the amount of the debt, a description of the chattel 102 THE mechanics' LIEN ACT. Section 32. or thing to be sold, the time and place of sale, and the name of the auctioneer, and leaving a like notice in writing at the last or known place of residence (if any) of the owner, if he be a resident of such municipality. Application of (2) Such mechanic or other person shall apply proceeds of ^ x x- ./ sale. the proceeds of the sale in payment of the amount due to him (g) and the costs of advertising and sale, and shall upon application pay over any surplus (/«) to the person entitled thereto. 41 V. c. 17, s. 3. Nature of liens on chattels at common law. General lien. Particular lien. (a) " So as thereby to be entitled to a lien." At common law there are two kinds of liens on chattels, viz. : general liens, and particular liens. A general lien is a right to retain a chattel not merely for work or money expended on the spe- cific chattel retained, but also for the general balance of account due by the owner to the lien-holder. A particular lien is the right to retain a chattel for the work or money expended on it. At common law, the lien of a mechanic on chattels, independent of any contract express or implied, is particular and not general, {Phillips, ss. 470-1). The right of particular lien exists when there is no agreement to the contrary, in every case where a bailee for hire has, by his labour and skill, or by the use of any instrument over which he has control, imparted additional value to the goods of another : see Cross on Lien, 24 ; Phillips, s. 474 ; Jackson v. Cummins, 5 M. »& W. 342. A shipwright is entitled to a lien on a ship for repairs : Franklin v. Hosier, 4 B. & Aid. 341 : and so is an engineer, for engines and boiler furnished by him to a vessel : Ex p. Willoughby, 44 L. T. N. S. Ill, 16 Ch. D. 604. THE mechanics' LIEN ACT. 103 The Act is confined to the case of particular liens, and only Section 32. tiuthorizes a sale for the satisfaction of claims for money, . ^ ~ , '' Act connned work, or materials bestowed in the alteration and improve- to particular ment of the particular chattel sold. It does not authorize "S"'*- the sale of chattels to enforce a general lien existing thereon. (6) " While such lien exists." The lien exists only so long Duration of as the lien-holder retains possession of the chattel, and his ^'®°- claim for work and materials bestowed thereon is unpaid. The parting with possession is a surrender of the right of Parting with lien, even though the claim remain unpaid ; and so also is pi^ssession ' o L ' puts an end the release of the debt, even though the possession of the to lien, ■chattel be retained. The possession must be continuous. Thus, where a mechanic had repaii'ed a carriage and allowed it to remain in his yard, but the owner had frequently taken it out of the yard, and returned it ; it was held that the mechanic could not afterwards retain it for the amount of the repairs : Hartley v. Hitchcock, 1 Starkie, 408. But, where A. sent a waggon to B. to make certain wood-work therefor, and B. , having finished the wood-work, sent the •waggon in A.'s name to another mechanic to do the iron- work, and subsequently got back the waggon, and upon A.'s calling for the waggon, allowed him to remove the box to the highway ; but, on his returning for the running part, refused to let it go until he was paid his bill ; it was held, that B. had not absolutely lost his lien by sending the waggon to the blacksmith, and that it revived on his again obtaining pos- session, and that allowing A. to move the box to the highway was no waiver of his lien : Milburn v. Milburu, 4 U. C. Q. B. 179 ; and see Webber v. Cogswell, 2 S. C. R. 15 ; but, see McNeil v. Keleher, 1.5 C. P. 470. And where an engineer had furnished an engine and boiler for a barge, and part of the contract price was not payable until after a trial trip ; and after the barge was ready to make the trip, but before it had been made, the owner failed, and a receiver having been appointed took possession 104 THE MECHANICS LIEN ACT. Section 32. of the barge, which was at that time lying in the docks in the name of the engineer, it was, nevertheless, held, that the right of lien was not lost : Ex p. Willoughby, 44 L. T. N. S, 111 ; 16 Ch. D. 604. Lien cannot A lien cannot be claimed so as to intercept the performance be claimed so Qf ^he actual contract between the parties, whether the con- performance tract is expressed, or is to be inferred from a certain course of contract. of dealing : per Lord Selborne, C. , Fisher v. Smith, 39 L. T, N. S. 430 ; 4 H. L. 1. Lien, how affected by credit being given. Takiiiy secu- rity, effect of on lien. When the work is done on credit, and the period of credit hasTTot expired before the goods are to be delivered, no lien exists : Crosx, 43. But it is said if the bailee retain posses- sion, and the owner become bankrupt before the period of credit has expired, the lien would attach as against the assignee, (Phillips, s. 499). But such lien, if any, could not prevail against a person to whom the chattel may in the- meantime have been sold by the owner : Crawshay v. Horn- fray, 4 B. & Aid. 50. The taking of a security payable at a. future day, in the absence of an agreement to the contrary,^ puts an end to the lien : Dempsey v. Carson, 11 C. P. 402.. The mere taking of security for the debt does not put an> end to the lien, unless there be something in the facts of the case, or in the nature of the security taken, which would be inconsistent with the retention of the lien: Angus v. McLachlan, 48 L. T. N. S. 863 ; 23 Ch. D. 330. Possession must be lawful. Lien only arises under a contract. The possession must be lawful, or there will be no lien.. Where one wrongfully obtains possession of chattels, and delivers them to a third party, who bestows money, skill or materials thereon, the latter would have no lien therefor, as against the rightful owner : Hartop v. Hoare, 3 Atk. 43. The lien can only arise by virtue of a contract, express or implied, with the owner or his agent : Phillips, ss. 494, 497- THE mechanics' LIEN ACT. 105 A sub- contractor has no right of lien which could be enforced Section 32, against the owner under this section : FhiUips, s. 496. (c) " Three months," i.e. calendar months : see The Inter- pretation Act, B. S. 0. c. 1, s. 8, s.s. 15. (d) " After the same oiufht to have been paid." Where credit is given, and the right of lien is preserved by express agree- ment, the three months will not commence to run until the expiration of the period of credit. (e) "To sell the chattel." Prior to this Act a person Sale of chattel acquiring a lien on a chattel for work done, had only a right ^^ realize lien., to retain it in his possession until his claim was paid by the owner ; the present Act enables him to realize the amount due to him by a sale of the chattel. It would seem that the lien-holder cannot himself be the Lien-holder purchaser at the sale : see King v. England, 4 B. & S. 782 ; cannot be Williams v. Grey, 23 C. P. 661 ; Burnham v. Waddell, 28 ^"'^ ^^^^' C. P. 263 ; 3 App. R. 288. (/) " On giving one iveek's notice." A week should elapse Notice of sale.- from the date of the first publication of the notice, before the sale. The notice should strictly follow the Act, any material omission might invalidate the sale and subject the vendor to an action of damages : see Shultz v. Beddick, 43 U. C. R. 155. For Form of Notice of Sale, see Appendix. (g) " Amoutit due to him. " A workman detaining a chattel Lieu-holder in respect of a lien for work done thereon, has no claim for cannot claim 1 1 ■ • T, XI warehouse warehouse charges during such detention : Bruce v. Everson, charges. 1 Cab & Ellis, 18. (/i) "Shall, upon application, pay over any surplus." The Surplus, how Act does not cast upon the lien-holder the duty of finding ^° ^® disposeJ 106 THE mechanics' LIEN ACT. Section 32. out the owner and tendering him the surplus, but merely requires him to pay it over on the application of the owner. The lien-holder would not be justified in mixing the surplus with his own moneys, or using it for his own purposes. He should either pay it over to the party entitled, or, if there be any difficulty in doing that, he may, under the Trustee Relief Act, pay the money into the High Court of Justice, (see Taylor , this day of , A.D. 18 .J 45 V. c. 15, Sched. Form C. APPENDIX. ADDITIONAL FORMS OF PROCEEDINGS UNDER THE MECHANICS' LIEN ACT. 5.— NOTICE BY SUB-CONTRACTOR TO " OWNER, " UNDER SECTION 11. To {name of owner). Take notice that I have been employed by (name of con- Form of notice tractor by whom the person giving the notice was etnployed) to ^^ sub-con- do work as [a painter on (or to supply materials for)] the " owner" building erected [or, now being erected] on (give short descrip- ^^'^^^ **• ll- tion of premises, as, for instance, lot 21, on the north side of Queen Street, in the City of Toronto, according to plan 81, registered in the registry office of, etc.,) and that the said (tuime of contractor) is indebted to me for such work [or materials] in the sum of $ , which is unpaid, and I claim a charge therefor on all moneys due by you to the said (name of contractor). Dated this day of , 18 . (Signature of sub-contractor giving the notice.) 112 THE MECHANICS LIEN ACT. Appendix. Form of appointment «of arbitrator. 6.— FORM OF APPOINTMENT OF ARBITRATOR. Whereas I, A. B., claim to be entitled to a lien upon the estate and interest of (name of owner) in (describe the lands) \or a charge upon the money due from {"name of owner) to you {name of contractor) ], for and in respect of a claim of $ , which I claim to be due to me by you for work done [or materials furnished], which claim you dispute. I do, therefore, hereby and by virtue of the statute in that behalf, appoint C. D., of (state his residence and occupation), as arbitrator to determine all matters in dispute between us touching my said claim. And I do hereby require you, within three days after the service hereof, to appoint an arbitrator on your behalf, and in default of your so doing I shall apply to the Judge of the County Court of the County of (the County in xohich the lands lie) to appoint an arbitrator for you. Dated this day of 18 (Signature of sub-contractor whose claim is disputed.) To [name of debtor disputing the claim). 7.— FORM OF RECEIPT IN DISCHARGE OF LIEN, UNDER SECTION 26. Yorm of ireceipt in dis- Kiharge of regis- tered lien Binder s. 26. I (name of lien-holder) acknowledge to have received from (}vame of " oivner" or other person making payment) $ in full discharge of my mechanics' lien as a [contractor or sub-contractor, as the case may be] upon lot (give short descrip- tion of land S'ufficient for registration purposes, e.g., the west- THE mechanics' LIEN ACT. 113 «rly 40 feet of lot 3G, on the north side of Street, Appendix, according to plan No. , registered in the City of ). Dated this , day of , 18 (Signature of lien-holder.) Witness : {Signature of tvitness. ) 8.— AFFIDAVIT VERIFYING KECEIPT IN DISCHARGE OF LIEN. UNDER SECTION 26. County of , To wit : In the matter of the Mechanics' Lien Act. I, , of {state residence and occupation), make Formofaffida- oath and say : ''^ verifying •' receipt. 1. I was personally present, and did see {name of lien- holder giving receipt) duly sign the above [or annexed or within, as the case may be] written receipt. 2. That I well know the said (name of lien-holder , and the said receipt was signed by him at the (state place where receipt signed). {Signature of deponent.) Sworn before me, at "j , this K day of . j {Signature of commissioner.) (a) (a) The affidavit may be sworn before a commissioner for taking affidavits : see iJ. S. O. c. 62, s. 12. H 114 THE MECHANICS LIEN ACT. Appendix. 9.— FORM OF INDORSEMENT ON MONS. (a) WRIT OF SUM- Form of indorsement on writ of summons. Form of cer- tificate of lis pendens. The plaintiff's claim is $ [for the price of goods sold by the plaintiflf to the defendant {naming defendant liable on the contract), or, for the price of goods sold and labour per- formed by the plaintiff to and for the defendant {naming the defendant liable on the contract) ], and the plaintiff claims a lien for the sum of f , upon the estate and interest of the defendant (name of oinier) in the following lands (give description of lands sufficient for registration), and to enforce- such lien under the provisions of the Mechanics' Lien Act. 10.— FORM OF CERTIFICATE OF LIS PENDENS. In (name of Court). 1 certify that in an action or proceeding in (name of Court),. between A. B. , plaintiff, and C. D. and E. F., defendants, some title or interest is called in question in the following land {describe it as in the indorsement of ivrit or statement of claim or other proceedings). Dated at, etc. As witness my hand and the seal of [the said Court, or my office]. (Signature of Judge or Clerk.) (a) Judgment to enforce a mechanics' lien can only be obtained in default of appearance, upon a motion to the Court under Rule 211 (C. R. 727). In order to move for judgment under this Rule, a state- ment of claim must be filed : Hunter v. Wilcockson, 9 P. R. 305. In actions to enforce a mechanics' lien, therefore, it seems advisable to serve a statement of claim with the writ. The indorsement on the writ need not go into all the details contained in a statement of claim. Where the action is brought to enforce an unregistered lien, it is necessary to issue and register a certificate of lis pendens. This certificate must be registered within thirty days from the completion of the work, or the supplying or placing of the machinery, in respect of which the lien is claimed, otherwise the lien will cease, (section 22). THE mechanics' LIEN ACT. 115 11.— STATEMENT OF CLAIM IN AN ACTION TO EN- Appendix. FORCE MECHANICS' LIEN OF CONTRACTORS. In the High Court of Justice, Division. Writ issued, , 18 . Between J. E. and W. B. , Plaintiffs, and M. A. T., Defendant. The plaintiff, J. E., is a builder, carrying on business Form of state- in the City of Toronto, in the County of York, and the |]^^"cti\!n b>^ plaintiff, W. B., is a bricklayer, also carrying on business contractor. in the said City of Toronto. 1. On the nth day of November, 18 , the defendant was, and she has ever since remained, and now is, the [owner in fee simple of the lands and or lessee of certain leasehold] premises in the City of Toronto, in the County of York, more particularly described in the claim or lien hereinafter set forth, (a) 2. On or about the said 11th day of November, the plain- tiffs, who are mechanics, were employed by the said defendant to perform certain work and to furnish certain materials for the erection of a brick hotel upon the said land for the said defendant, and there was no agreement (b) between the said defendant and the plaintiffs that the plaintiffs should not be entitled to a lien upon the said lands and buildings for the price of the said work and materials. (a) If the lien has not been registered before action, this paragraph should set forth the lands upon which the lien is claimed, and should be modified accordingly. (b) Eathburn v. Burgess, 17 C. L. J. 111. llfj THE mechanics' LIEN ACT. Appendix. 3. In pursuance of the said employment, the plaintiffs did do a large amount of work upon and did furnish large quan- tities of materials, which were used in and about the erection of the said brick hotel upon the said lands, to the value of $18,000, and completed the same on the 4th day of Septem- ber, 18 , whereby the defendant became indebted to the plaintiffs for the said work and materials in the said sum of $18,000. 4. The sum of $15,000 has been paid on account of the said sum of $18,000, leaving a balance of $3,000 still due and payable to the plaintiffs. 5. By reason of being so employed, and doing the said work, and furnishing the said materials, as aforesaid, the plaintiffs became and are entitled to a lien on the estate and interest of the defendant in the said lands for the said sum of $3,000, under the provisions of " The Mechanics' Lien Act" {If the lien has been registered before action, proceed as follows ;) [6. On the 21st day of September, 18 , the plaintiffs, in pursuance of the said Act, caused to be registered in the Registry Office, in and for the City of Toronto, a claim of lien, which claim is in the words and figures following, that is to say : (a) "J. E., of the City of Toronto, in the County of York, builder, and W. B., of the same place, bricklayer, under ' The Mechanics' Lien Act,' claim a lien upon the estate of M. A. T., of the said City of Toronto, in the under- (o) Where a lien is registered before action, it is necessary that the action should be commenced within ninety days from the day on which the work was completed, or materials or machinery fur- nished, or the period of credit mentioned in the registered claim expired, (see sections 23, 24.) THE mechanics' LIEN ACT. 117 mentioned land, in respect of the following work and mate- Appendix-, rials, that is to say : To amount of contract §17,000 Bill of e.dras. To extra stone in foundation 500 " Brick pointing 200 " Second flats of extra :[-bricks in thickness 300 $18,000 1873. Dec. 1.— By cash S2,000 22.— " 1,000 li 1874. Jan. 5.— " 5,000 July 6.— " 7,000 815,000 Balance 83,000 which work was done and materials were furnished for the said M. A, T. between the 1st day of May, A.D. 18 , and the 4th day of September, A.D. 18 , the amount claimed as due is the sum of 83,000 ; the following is the description of the land to be charged : — All and singular that certain parcel of land lyiown as lot 3, on the west side of John Street, as shown on the plan of J. S. Dennis, P.L.S., registered in the Registry Oflice of the said City of Toronto, and numbered D. 63. " Dated at the City of Toronto, in the County of York, this 21st day of September, A.D. 18 . "Witness, j Signed J. E. *^ Signed J. Barnes, ) Signed W. B. 118 THE mechanics' LIEN ACT. Appendix. — which statement was verified by an affidavit of the plaintiffs, sworn before a commissioner for taking affidavits in the said County of York, as required by the said statute."] (a) [If the lien has not been registered before action^ proceed as follows, omitting the above paragraph 6 : in respect of the following work and materials, that is to say. {set out particulars of claim in manner shoivn above in imra- graph 6, and proceed). 6. The work mentioned in the above particulars was com- pleted on {stating the true date of the completion, which should be within thirty days from the issue of the imt : see section 22), [or, the said machinery mentioned in the above par- ticulars was supplied [or placed] upon the said lands in the first paragraph hereof mentioned on {stating when the delivery of the machinery was completed, ivhich should be a day luithin thirty days from the issuing of the unit). 6a. A certificate of lis pendens has been issued in this action, and duly registered in the registry office for , on the day of (naming a day loithin thirty days from the completion of the work, or the delivery or placing of the machinery in respect of which the Hen is claimed).^ 7. The lands referred to in the first paragraph hereof, [and particularly described in the said claim of lien herein - (a) A lien for work must be registered before or during its progress, or within thirty days after its completion, and a lien for materials or machinery must be registered within thirty days from the delivery or placing thereof, (see section 21) unless the action be commenced, and a certificate of Us pendens be registered within thirty days from the completion of the work or delivery of the materials or machinery, in which case registration of the claim before action is unnecessary : {see section 22). Where a statement of claim shows that the regis- tered claim was not in proper form, or not registered within the time limited by the Act, the statement of claim is demurrable : Roberts v. McDonald, 15 O. R. 80. THE mechanics' LIEN ACT. 119 before set forth,] (a) are the lands occupied by and usually Appendix, enjoyed with the said hotel. The plaintiffs claim :— 1 That the defendant may be ordered to pay to the plaintiffs forthwith the said sum of $3,000, together with the interest thereon and the costs of this action. 2. And that in default of such payment, all the estate and interest of the defendant in the said lands and buildings, or a competent part thereof, may be sold, and the proceeds thereof applied in or towards payment of the plaintiffs' debt and the costs of this action, pursuant to the said ''The Mechanics' Lien Act." 3. That for the purposes aforesaid all proper directions may be given and accounts taken. 4. Such further relief as the nature of the case may require. The plaintiff's propose that this action should be tried at Toronto. Delivered the day of ,18 ,byX.Y. Z.,of plaintiffs' solicitor. 12 —STATEMENT OF CLAIM IN ACTION TO ENFORCE A MECHANICS' LIEN BY A SUB-CONTRACTOR. In the High Court of Justice, Division. Writ issued 18 . Between J. E., Plaintiff, and M. A. T. (Owner), C. D. (Gontractor) , and E. T. {Sub- contractor by irhom plaintiff em^/oj/ed)— Defendants. 1. On the nth day of November, 18 , the defendant, ^^^^^^f ,,f^^5^' H. A. T., was and she has ever since remained and now is -^^ ^^^.j^jj |,y , — , r ~ r 7 sub-con- (a) The words in brackets should be omitted when the lien has not tractor. been registered before action. 120 THE mechanics' LIEN ACT. Appendix, the [owner in fee simple of the lands and, or lessee of certain leasehold] premises in the City of Toronto, in the County of York, (if the plaintiff's lien has been registered, conclude as in 2)receding form, if not, say) known and described as follows, that is to say : {set out description of land over ivhich lien is claimed). 2. On or about the said 11th day of November, the said de- fendant, M. A. T. , employed the defendant, C. D. , to perform certain work and to furnish certain materials for the erection of a house upon the said land for the said defendant, M. A. T., for the price or sum of ^10,000. 3. The defendant, C. D., accepted the said employment, and agreed with the said M. A. T., to perform the said work and to furnish the said materials, and afterwards employed the defendant, E. T. , to do part of the said work and furnish part of the materials required for the erection of the said house, for the sum of $1,000, which employment the defen- dant, E. T., accepted, and he agreed with the said C. D. to do the work and furnish the materials last referred to for the said price or sum of $1,000. 4. On the 11th day of December, 18 , the defendant, E. T., employed the plaintiff to do part of the work and furnish part of the materials for the erection of the said house which he had so agreed with the said defendant, C. D. , to do and furnish as aforesaid, and agreed to pay the plaintiff therefor the price or sum of $600 ; and there was no agreement (a) between the plaintiff and the said M. A. T., that the plaintiff should not be entitled to a lien for the work done and materials furnished by him, as hereinafter mentioned. 5. The plaintiff accepted the said employment, and in pur- suance thereof the plaintiff" did do a large amount of work upon, and did furnish large quantities of material in and (a) Rathhurn v. Burgess, 17 C. L. J. 111. THE mechanics' LIEN ACT. 121 about the erection of, the said house upon the said lands to Appendix. the value of $500, and completed the said work and the delivery of the said materials on the oth day of January, 18 , whereby the defendant, E. T. , became indebted to the plaintiffs for the said work and materials in the said sura of $500. 6. The said work was done, and the said materials were furnished by the plaintiff in accordance with the terms of the contract or agreement between the said defendants, M. A. T. and C. D. , and there is now due a large sum of money by the said M. A. T., under her contract with the said C. D., which the plaintiff claims equals or exceeds $ 7. The sum of $100 has been paid by the said E. T. on account of the said sum of $500, leaving a balance of $400 still due and payable by him to the plaintiff". 8. By reason of being so employed, and doing the said work and furnishing the said materials as aforesaid, the plaintiff became and is entitled to a lien on the estate and interest of the defendant, M. A. T. , in the said lands for the said sum of $400, under the provisions of the said *' The Mechanics' Lien Act. " ( Where notice has been given under sec- tion 11, see Form 13, post). If the lieu luis not been registered before action, proceed as follows : — 9. A certiticate of lis pendens has been issued in this action and registered in the Registry Office for on the day of (naming the day, which should be icithin thirty days from the date mentioned in paragraph 5 as the date of the completion of the work, etc.). 9. [If the lien has been registered before action proceed as in paragraph 6 of preceding form.] 122 THE mechanics' lien act. Appendix. 10. The lands referred to in the first paragraph of this statement of claim [if so, and particularly described in the said claim or lien hereinbefore set forth] are the lands occupied by and usually enjoyed with the said house. 11. The defendants, C. D. and E. T., have also done work and furnished materials in and about the erection of the said house and are entitled to liens in respect thereof upon the said lands under the said " The Mechanics' Lien Act." The plaintiff claims : — 1. That the defendant, E. T., may be ordered to pay to the plaintiff forthwith the said sum of $400, together with interest and the costs of this action. 2. And that the defendant, M. A. T. , may also be ordered to pay the same or such part thereof as the plaintiff, by virtue of his said lien and charge as aforesaid, is entitled to receive from the said M. A. T. 3. And that in default of such payment by the said M. A. T. and the said E. T. that all the estate and interest of the defendant, M. A. T., in the said lands and buildings, or a competent part thereof, may be sold, and the proceeds applied in or towards payment of the plaintiff's debt and the costs of this action, pursuant to the said " The Mechanics' Lien Act." 4. That for the purposes aforesaid all proper directions may be given and accounts taken. 5. And that the plaintiff may have such further relief as the nature of the case may require. THE mechanics' LIEN ACT. 123 The plaintiflF proposes that this action should be tried in Appendix. Toronto. Delivered the day of , 18 , by X. Y. , of , plaintiff's solicitor. 13.— CLAIM BY A SUB-CONTRACTOR TO CHARGE ON MONEYS IN THE HANDS OF THE "OWNER," UNDER SECTION 11. (a) On the • day of the plaintiff delivered to Form of claim the defendant (oivner) notice in writing of his said lien, ac- ^o^eys in cording to the provisions of section 11 of The Mechanics Lien owner's hands Act, whereby the plaintiff became and now is entitled to a ""^ • " charge upon all moneys which on the said day of idaU of giving notice) were then due and payable, or which have since become due and payable, by the defendant {owner) to the defendant {contractor). The plaintiff claims to have it declared that he is entitled to a charge pro rata with all other lien-holders who shall have given notice of their liens under section 11 of The Mechanics' Lien Act upon all moneys on the day of {date of notice) due and pay- able, or which have since that day become due and payable, by the defendant {owner) to the defendant {contractor). That the amount for which the plaintiff is so entitled to a charge may be ascertained under the order and direction of the Court, and that the defendant {owner) may be ordered to pay the same to the plaintiff. (a) This and the three following forms are not intended as com- plete forms, but merely as additional clauses to a statement of claim claiming a lien. Where the i>laintiff' s sole claim is the relief referred to in these four forms the preliminary part of the claim can be readily adapted from the preceding forms. 124 THE mechanics' lien act. Appendix. 14. — CLAIM OF CHARGE ON TEN PER CENT. OF PRICE IN RESPECT OF THIRTY DAYS' WAGES, (a) Form of claim The plain tift" is also entitled to a charge upon ten per centum 10 7 of price ^^ *^® price to be paid by the defendant [owner) to the de- in respect of f endant {naming cr machinery] upon the said lands as aforesaid, and that the same when paid into Court may be paid out to the plaintiff and such other lien-holders of the same class as are entitled to share therein, subject to the pay- ment of the plaintiffs costs. 126 THE MECHAMICS LIEN ACT. Appendix. 3. That in default of the defendant (mortgagee) making such payment, the said land may be sold freed from the said mortgage, and that the increased price which may be realized from such sale may be ascertained, and that the same may be ordered to be applied in payment of the liens of the plaintiff and other lien-holders of the same class entitled to the benefit of this action, subject to the pay- ment of the plaintiffs costs. 17._F0RM OF INTERLOCUTORY EX PARTE INJUNC- TION RESTRAINING THE REMOVAL OF BUILDINGS OR MACHINERY, Etc., UNDER SECTION 15. (Formal part of order as usual.) Form of inter- And the plaintiff [in person or by his counsel] undertaking ' locutory to abide by any order this Court may make as to damages in ieSSrng case this Court shall hereafter be of opinion that the defend- remoyal of ant [w defendants, or any or either of them] shall have sus- buildmgs, etc. ^^^-^^^j ^^^ ^,y reason of this order which the plaintiff ought to pay. This Court doth order that the defendant, his [or the de- fendants, their] servants, workmen and agents be and they are hereby restrained until *the day of next, and until any motion which may on that day be made to continue this injunction shall have been disposed of,* from moving from the premises known as and being (describe lands subject to lien) any of the buildings, erections, material or machinery now standing, lying or being thereon, (a) (a) Where the injunction is subsequently continued to the trial the order may be in a similar form to the above, substituting for the words between the * * the words "the trial or other final disposition of this action." THE mechanics' LIEN ACT. 12T 18.— FORM OF INJUNCTION RESTRAINING REMOVAL Appendix. OF BUILDINGS OR MACHINERY, Etc. (a) {Formal parts of order, or jtidgment, as usual.) The Court doth order and adjudge that the defendant, his Form of [or defendants, their] servants, workmen and agents, be, and ^"^alJi'ted at they are hereby, restrained from removing from off the prem- trial, restrain- ises known as and being {describe lands subject to lien) any of |°fii^l™^^^etc, the buildings, erections, material or machinery now standing, lying or being thereon until the liens of the plaintiff and other lien-holders of the same class entitled to the benefit of this action upon the said lands shall have been satisfied. 19.— FORM OF ORDER VACATING LIEN. {Title, style of cause or matter.) Upon the application of {otvner) in presence of the solicitor Form of order for {lien-holder), and upon hearing read {affidavits and other vacating len. papers upon which application founded) it is ordered that the claim of [name of lien-holder) to a lien upon the estate or interest of {name of oimier) in the following lands, viz. : {de- scription of lands as in registered claim), in respect of the fol- lowing work [or materials], that is to say, {describe it as in the registered claim) done [or furnished] for {name of person for whom icurk done or ^naterials furnished as in registered claim) on or before the day of , and in respect of which the sum of $ was claimed by the said {lien- holder as due [or to become due] and which said claim was registered in the Registry Office of on the day of at o'clock as No. , be and the same is hereby vacated and discharged. (a) This form is only suitable to be inserted in a judgment. For form of an interlocutory injunction granted pending the action see Form No. 17. 128 THE MECHANICS LIEN ACT. Appendix. Form of sum- mons to en- force lien in C. C. or D. C, 20.— SUMMONS TO ENFORCE MECHANICS' LIEN IN COUNTY OR DIVISION COURT. In the [County or Division Court] of the County of In the niatter of The Mechanics' Lien Act, and in the matter of the mech'anies' lien of A. B. upon the (give short de- scription of land sufficient for registration). Upon the application of A. B. , of (residence and description), and upon reading the affidavits and papers filed, let C. D. , of {naming owner, or oioners, and other persons inter- ested in the land whose interest is sought to he sold for the satis- faction of the applicant's lien) attend before me at my chambers at , on , the day of next, at o'clock in the noon, or so soon thereafter as the motion can be heard, to show cause why they should not pay the said A. B. the sum of % , being the amount of his said mechanics' lien upon the above mentioned lands within such time as I may appoint, and why, in default of such payment being made, the said lands [or the interest of the said C. D. in the said lands] should not be sold for the satisfaction of the lien of the said A. B., and why all necessary inquiries should not be made, accounts taken, and proceedings had before me as may seem just and necessary for the purpose of enforcing the lien of the said applicant ; and let (naming other j)ersons having claims) attend and jDrove their claims before me at the time and place afore- said ; and in default of their so doing their claims will be barred. 21.— ORDER FOR PAYMENT OF LIEN, AND IN DE- FAULT FOR SALE, UPON SUMMARY APPLICATION IN A COUNTY OR DIVISION COURT. (Heading as in last form). Form of order Upon the application of the above named A. B. , in presence for sale upon of C. D., E. F., G. H., 1. J. \pr no one appearing for I. ,T., "^'^ A T51.29 THE MECHANICS LIEN AC'iy: AVV although duly notified], and upon readin^^he' summons Appetidix. granted in this matter and the aWd^its a» THE mechanics' LIEN ACT. Appendix, the said Master shall have made his report, the amount which the said Master shall ascertain to be the amount by which the selling value of the said lands has been increased by the improvement thereof as aforesaid, or so much thereof as may be sufficient to satisfy the amounts which shall be found due to the plaintiff and other lien-holders of the same class for principal, interest, and costs, this Court doth order and adjudge that the plaintiff and such other lien-holders do release and discharge their said liens. 11. And this Court doth further order and adjudge that the amount which may be so paid into Court as last aforesaid be applied — 1st, in payment of the plaintiff's costs of this action ; 2nd, in payment of the claims of the plaintiffs and other lien-holders (including the costs of such other lien- holders which are to be added to their claims) pari passu, and the residue thereof (if any) is to be repaid to the said defendant {mortgagee). 12. And this Court doth further order and adjudge that in the event of said defendant {the mortgagee) so electing to pay the amount by which the selling value of the said lands has been increased as aforesaid, that he be at liberty to add the sum which may be so paid by him as aforesaid to the amount of his mortgage debt, and proceed to recover the same in this action by foreclosure or sale of the mortgaged premises. 13. And this Court doth further order and adjudge that in the event of said defendant {the mortgagee) so electing as aforesaid, and failing to pay the amount found to be payable upon such election, by the said Master as aforesaid, the said premises in question be sold as hereinbefore directed, and the proceeds applied as already provided, except that said defendant {the mortgagee) is not to be entitled to any costs beyond what would have been incurred if he had not so , elected. THE MECHANICS LIEN ACT. 141 26.— FORM OF JUDGMENT IN ACTION BY CONTRAC- Appendix. TOR WHERE OWNER DENIES TFTAT ANYTHING IS DUE TO PLAINTIFF, (a) {Formal parts an in preceding furm No. 22. ) 1. This Court doth order and adjud,£fe that it be referred Form of judg- to the Master of the Supreme Court of Judicature, ^^t ™ent m^action , to inquire and state whether anything is due from where owner the defendants to tlie plaintiffs, in respect of their alleged th^jjg^o'ljg mechanics' lien in tlie pleadings mentioned. due. 2. And in case the said Master shall tind that there is any- thing due to the plaintitts from the said defendants, this Court doth further order and adjudge that the said Master do inquire and state whether any person or persons, and who, other than the plaintiffs, except prior mortgagees (if any) has or have any lien, charge, or incumbrance upon the estate and interest of the defendants in the said lands and premises in the plaintift"'s statement of claim mentioned, and in case the said Master shall find that any person or persons other than the said plaintiff (except prior mortgagees) has or have any such lien, charge, or incumbrance, then he is to cause such person or persons to be made parties to this action and served with process according to the practice of this Court, and is to proceed to take an account of the amount due to the paid plaintiffs, and to such other incumbrancer or incumbrancers (if any) for principal and interest, and to tax to them their costs of this action, and the plaintiff's costs of registering his said lien, and settle their priorities. 3. And upon the said defendants paying the amounts which the said Master shall find to be due and payable by them to the plaintiff, and such other incumbrancer or incumbrancers (if any), within one month after the said Master shall have made his report, at such time and in such manner as the said (a) See BouU v. WeningUm Hotel Company, D. B. 23, fo. 29. 142 THE mechanics' lien act. Appendix. Master shall appoint ; this Court doth order and adjudge that the said plaiutitis, and such other incumbrancer or incum- brancers (if any), do release and discharge their said liens, or convey and assign the said premises free and clear of all incumbrances done by them, and tleliver up all deeds and documents in their respective possession or power relating thereto upon oath to the said defendants, or to whom they shall appoint, or enter up satisfaction upon the rolls of their judgment as the case may require. 4. But in default of the said defendants making such payments by the time aforesaid , this Court doth order and adjudge that the estate and interest of the said defendants in the said premises be sold with the approbation of the said Master, and the purchasers are to pay their purchase money into the Court to the credit of this action ; and all proper parties are to join in the conveyances to the purchasers as the said Master shall direct. 6. And this Court doth further order and adjudge that the purchase money, when so paid into Court, shall be applied : — 1st. In payment to the plaintiflFs of their said costs. 2nd. Tn payment to the plaintiffs, and such other incumbrancer or incumbrancers ^if any) of the amounts which the said Master shall find due and payable to them by the said defendants for principal money, interest, and costs (other than the costs of the plaintiff as aforesaid), according to their priorities, and the residue of the said purchase money, if any, is to be paid to the said defendants. (). And, in the event of such purchase money being insuf- ficient to pay the claim (if any) of the said plaintiffs, this Court doth order and adjudge that the said defendants do pay to the plaintiffs the amount remaining due to them forth- with after service upon them of this judgment, and the Master's cei-titicate of such deficiency. THE MKCHANICS' LIKN ACT. 148 7. But in the event of the said Master linding that there Appendix, is nothing due from the said defendants to the phiintitls in respect of their alleged nieclianics' lien in the pleadings men- tioned, this Court doth reserve further directions and the question of costs until after the said Master shall have made his report. 27.— FORM OF JUDGMENT IN ACTION BY SUB-CON- TRACTOR WHERE OWNER ADMITS A SUM DUE TO CONTRACTOR. («) {Formal parts as in preceding form No. 22. ) 1. This Court doth declare that the plaintitis, and the other Form of judg- lien-holders of the same class, if any, entitled to the benefit ^y "'^" q^*'"" of this judgment, are entitled to a lien and charge upon the tractor where estate and interest of the defendant {uwner) in the lands and o^ner adimts premises in the plaintiff's statement of claim mentioned, and due. upon the buildings and erections upon the same by virtue of " The Meclianics Lien Act," for so much of the price of the work done upon or materials furnished or provided by the plaintiffs, and such other lien-holders, if any, in and about the buildings erected upon the said lands as remains justly due to the said plaintiffs, and such other lien-holders, if any, to the extent of the whole or such part of the amount due by the defendant {on-ncr) to the defendant (contractor} upon his contract in said pleadings mentioned as the plaintiffs, and such other lien-holders, if any, may be found entitled to, which amount is to be ascertained as hereinafter directed, and doth order and adjudge the same accordingly. 2. And this Court doth further order and adjudge that it be referred to the Master of the Supreme Court of Judi- cature for Ontario, at , to take an account of the amount due from the said defendant {oimer) to the defendant (a) See Lindop v. Martin, J. B. 3, fo. 414 ; and see J. B. 4, fo. 143. 144 THE mechanics' lien act. Appendix, (contractor) in the pleadings mentioned in respect of all work done upon, and material provided for, the erection of the buildings upon the lands in the pleadings mentioned. 3. And this Court doth further order and adjudge that the said Master do inquire and state whether any person or persons, and who other than the plaintiffs (other than prior mortgagees) has or have any lien, charge or incumbrance upon the said lands and erections thereon, under " The Mechanics Lien Act," or otherwise ; and, in case the said Master shall find that any such person or persons has or have any such lien, charge, or incumbrance, he is to cause them to be made parties to this action, and served with pro- cess according to the practice of this Court, and is to proceed to take an account of what is due to the said plaintiflfs upon and in respect of their said lien, and to such other incum- brancers, if any, and to settle their priorities. 4. And this Court doth further order and adjudge that the said defendant (oioner) be at liberty forthwith to pay into Court to the credit of this action, subject to the further order of this Court, the balance of the sum of $688, being the amount admitted to be due by him to the defendant (con- tractor), after deducting from the said sum his costs of this action up to and inclusive of this judgment to be taxed, with- out prejudice to the right of the plaintiff, or any other lien- holder, to contend that a larger sum is due from the defendant (owner) to the said defendant (contractor). 5. This Court doth further order and adjudge that upon the said defendant paying into Court such balance as aforesaid, the lands in the pleadings mentioned be thereupon discharged from the lien of the said plaintiffs, and all other lien-holders, if any of the same class, to the extent of the said sum of $688. 6. And this Court doth reserve further directions, and the question of costs, except as aforesaid, until after the said Master shall have made his report. THE MECHANICS LIEN ACT. 145 28.— FORM OF NOTICE OF SALE OF CHATTELS TO BE Appendix. PUBLISHED AND SEHVED ON OWNER UNDER SKC" TION .S2. AUCTION SALE. Whereas {name uf person indebted) is indebted to the under- Form of notice signed in the name of $ for [work done and materials ^'^^^^^^j^^^ supplied in the alteration or improvement of one spring wag- satisfy lien, gon] , and three months have elapsed since the said sum ought under s. 3-.'. to have been paid, and default has been made in payment thereof, notice is hereby given that on next, the day of , at {place of sale, e.g. the auction rooms of C. D., No. G King Street West, in the City of Toronto), the said {describe chattel) will be sold by {name of auctioneer), by public auction. {If the sale is to be subject to a reserved bid, or other special conditions, it should be so stated.) Date, etc. {Signature of lien-holder.) INDEX. ACCOUNTS, how taken, on summary application in D. C. or C. C, 81, 85-7. parties entitled to notice, 80, 87. ACTION TO ENFORCE LIEN. See Lien— Sale. commencement of, 73. to enforce charge, 23. dismissal of, not granted after judgment, 91, 92. effect of, on other liens of same class, 72. incumbrancers, subsequent, should be parties, 72, 92. how ascertained, 93. when to be added, 93. keeps alive other liens of same class, 72. lien-holders of same class, how made parties, 93. when entitled to benefit of, 77. mortgagee, prior, against, 31. parties to, 31, 74. time for bringing, 31, 32. parties to, 72, 73. adding in Master's Office, 92, 93. effect of, 9. prosecution of, where plaintiff dies, 88. by other lien-holders, 88. registered, time for, 76. unregistered, time for, 70, 71. AFFIDAVIT. See Forms. assignee's, verifying claim for registration, 55. commissioner may take, 58. proving claim for registration, 56. defects in, 58, 59. 148 INDEX. AGREEMENT TO WAIVE LIEN, etfectof, 11-13, 33. inciniry should be made as to existence of, 13. invalid as against persons not parties, 12, 33. must be in writing, 13. ALTERATION OF BUILDING, lien for, 12. ARBITRATION. See Award. arbitrators, how appointed, 50, 51, 53. decision of, final, 50,52. disputes to be referred to, 47, 50, 51. ARCHITECT, when entitled to lien for services, 14. ASSIGNEE, of lien-holder, rights of, 78, 79. affidavit of, for registration, 55. when bound by agreement to waive lien, 12. " owner," when bound by lien, 8-11. ATTACHMENT OF DEBT, effect of, on lien, 57. AWARD, concurrence of three arbitrators necessary, 52. default in paying, 48, 49. disputing, 52. grounds for, 52. execution of, by arbitrators, 52. impeaching, 52. irregularities which invalidate, 62. mistake of arbitrators as to legal effect of their finding, 52. payment after, efl'ect of, 49. before, effect of, 50. rule of Court, cannot be made, 52, INDEX. 149 BOILER, when lien may be claimed for furnishing, 18. BUILDER, right of, to lien, 12, VS. BUILDINGS. See Lien. destruction of, effect of on lien, 21, 22. erection of, lien for, 12, 13, 15, 19, 21. removing, no lien for, 18. tearing down, no lien for, 18. transfer of to another lot, effect of, 22. when not subject to lien, 20. CERTIFICATE. See Lis Pendens. architects', or engineers', production of when condition precedent, 17, 43. non-production of, when excused, 17. CHARGE ON PRICE PAYABLE BY OWNER, sub-contractor when entitled to, 23, 85-37, 39, 40, 41, 43, 44, 46. duration of, 35. extent of, 39, 41, 42. when not entitled to, 39, 41, 42, suit to enforce, time for bringing, 23. CHATTELS. See Forms. lien on, for work, 101. duration of, 102, 103. possession of, essential to lien, 103. must be lawful, 104. sale of to satisfy lien, authorized, 101, 105. notice of, to be served and published, 101, 105. proceeds, how to be applied, 102, 105, 106. CLAIM OF LIEN. See Forms— Lien.s— Registration. CLASS, lien-holders of same, who are, 90, 91, 94, 95. how entitled, 89. 150 INDEX. CONFLICTING RIG UTS, adjustment of, where Begisfnj Act does not apply, 61, 65. CONTRACT. See Contractor. acceptance of imperfect performance of, 16. certificate of architect, or en.^ineer, 17. non-production of, 17. deviation from, effect of, 15, 16. as to sub-contractor, 16-17. impossible of performance, effect of, 15, 16. , lunatic, not able to make, 6. ^ minor, not able to make, 6. must be binding on "owner," 6. time for performance, waiver of, 16. trustee, making, binds trust estate, 7- work under, not done on land, 17. CONTRACTOR. See Contract— Lien— Sub-Contractor. assignee of, how far bound by agreement to waive lien, 12. definition of, 3, 4. dismissal of, 21. sub-contractor finishing work on, 21. woods supplied to, on running account, lien for, 70. lien, right of, to, 12, 13. costs of discharging, liability for, 80, 81. materials furnished by, exempt from execution, 98-101. payments by, to sub-contractors, effect of, 35, 37. personal representative of, how far bound by agreement to waive lien, 12. CONVEYANCE, Judge of C. C. or D. C. may make, 82, 87. CORPORATION, may claim lien, l-l. COSTS, - fees payable on proceedings in C. C. and D. C. , 82. of action to enforce lien, priority of, 96. registering discharge (jf lien, 80, 81. lien, recoverable in action, 89, 94. INDEX. 151 COUNTY COURT, enforcing lien in, 81. Judge of, may take accounts, 81, 85. grant conveyance, 82, 87. jurisdiction of, to enforce liens, 81, 83. vacate lien, 90. restrain removal of property subject to lien, 53, 54. lis peiidens, how issued, 74, 75. certificate of, Judge may grant, 85. sale of land, may be ordered in, 87. COUNTY JUDGE. See County Court. arbitrators, power of, to appoint, 51. CREDIT, effect of, on time for bringing action to enforce lien, 71. period of, to be stated in registered claim, 75. effect of not stating it, 77. time for bringing action when given, 77. DEATH, of lien-holder, lien passes to personal representative, 78. DISCHARGE OF LIEN. SVt' Division Court. 156 INDEX. hlEl^— Continued. dowress, where bound by, 6, 6. duration of, 54, 66, 70, 71, 75-77. employment, entitling to, 20. enforcing in High Court, 88 See Action to Enforce Lien. County Court, and Division Court, 81-87. execution, see Execution. extent of land, subject to, 27, 28. injunction. See Injunction. instantaneous seizin, effect of, on, 8, 25. insurable, 22. interest, bound by, 5, 24, 25. only such can be sold, 26. land, on, 23. sale of, in execution, effect of, 22. whea exempt from, 20. leasehold, liability to, 23. lessor's interest, where bound by, 2ii. lien-holder. Sec Lien-Holder. locomotive, none for, 19. lunatic, none against land of, 6. machinery, may be claimed for, 12, 13. portable, none for, 19. materials, may be claimed for, 12, 13, 19. incorporation of, in building, where necessary, 19. minor, none against land of, G. mortgaged land, on, 23. mortmain. Sec Mortmain. motion to vacate, 97, 98. notice of, when to be given to " owner," 38. " owner's " interest in land only bound by, 5. assignees of, how far bound by, 8, 11. payments, under contract, how far discharge of, 35-37. wrongful by " owner," etiect of, 36. contractor, effect of, 38. " owner " not liable for, 37. INDEX. 157 LIEN— Continued. pre-emption, right of, may be bound by, 2C. pri